Gary Sydney Green & Anor v AMP Financial Planning Pty Ltd & Ors [2008] NSWSC 1164

New South Wales Supreme Court

CITATION : Gary Sydney Green & Anor v AMP Financial Planning Pty Ltd & Ors [2008] NSWSC 1164 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4,5,6,7,10,13,14 November 2008

JUDGMENT DATE : 5 December 2008

JUDGMENT OF : Hammerschlag J

DECISION : Plaintiffs' claim against the defendants dismissed with costs. Judgment for the second cross-claimant against the first cross-defendant for $102,100 plus interest at the rate of 14 per cent per annum from 5 April 2002. First cross-defendant to pay the second cross-claimant's costs of the cross-claim.

CATCHWORDS : TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – consumer protection – whether certain conduct misleading or deceptive or likely to mislead or deceive under s 52 of the Trade Practices Act 1974 – plaintiffs invested in funds managed by the third defendant, including a fund described as the Global Technology Fund ("GTF") – second and third defendants also held units in GTF, a fact known to the plaintiffs – in February 2001, third defendant decided to ("the decision") and subsequently did redeem its units in GTF – the third defendant did not disclose to the plaintiffs either the fact of the decision ("the conduct complained of") or its redemption – from late 2000 to late 2001 value of units in GTF deteriorated significantly – plaintiffs allege that by the conduct complained of the third defendant engaged in conduct that was misleading or deceptive or likely to mislead or deceive, and that had the third defendant disclosed the decision to the plaintiffs they would have redeemed their units in GTF and invested all of the proceeds in other funds – held that the conduct complained of was not misleading or deceptive or likely to mislead or deceive and accordingly that the plaintiffs' claim fails – whether non disclosure of information must be "deliberate" to be liable to be conduct that is misleading or deceptive or likely to mislead or deceive – held that it need not be deliberate, following the decision of the Victorian Court of Appeal in CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ATPR 42-042 - DAMAGES – whether plaintiffs would have redeemed their units in GTF had they been told of the decision – objective features of the plaintiffs' behaviour and attitude at the relevant time does not support plaintiffs' oral evidence that they would have redeemed their units – held that even had plaintiffs been told of the decision, they would not have redeemed – whether if the plaintiffs had been told of the decision and had redeemed, they would have invested all of the proceeds into other funds or whether they would have firstly used the proceeds to discharge margin loans – held that the plaintiffs would have firstly used the proceeds to discharge margin loans