ASIC v Sydney Investment House Equities Pty Ltd [2008] NSWSC 1224

Reported Decision : 69 ACSR 1

New South Wales Supreme Court

CITATION : ASIC v Sydney Investment House Equities Pty Ltd [2008] NSWSC 1224 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 5 – 8, 12 – 15 May, 10 – 12, 16 – 19 June, 4, 5 & 14 August, 1 - 2, 4 - 5 & 25 September 2008

JUDGMENT DATE : 21 November 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Some claims that third defendant committed breaches of his duties as a director established, others rejected.

CATCHWORDS : APPEAL AND NEW TRIAL [102] – Appeal – General principles – Points and objections not taken below – When not allowed to be raised on appeal – Questions not raised on pleadings or in argument – Particular cases – Other matters – Claims not encompassed in statement of claim – Whether relief on those claims may be granted – Whether parties choose to fight the case on issues chosen at the trial - CORPORATIONS [1245], [1246], [1247] – Management and administration – Duties and liabilities of officers of corporations – Fiduciary and related statutory duties – Of care, skill and diligence – To act honestly – Duties involving conflicts of interest – Generally – Ambit of foregoing duties - TRADE AND COMMERCE [80] – Trade Practices and related matters – Consumer protection – Misleading, deceptive or unconscionable conduct – Character and attributes of conduct – Representations – As to future matters – Reasonable grounds for making representations – Evidentiary burden on representor to prove reasonable grounds – TPA s 51A, ASIC Act s 12BB – Sections do not apply where it is alleged that director caused or permitted company to make the impugned representations.

Australian Securities and Investments Commission Act 2001 (Cth) ss 12BAA, 12BAB, 12BB, 12DA, 12DB, 12DF, 12GB, 12GF & 33 Companies (New South Wales) Code s 229 Corporations Act 2001 (Cth) ss 9, 45A, 95A, 180 – 182, 191 – 195, 206C, 257A, 285, 286, 314, 319, 533(2), 589, 601ED, 700, 706, 708, 708A, 728, 729, 734, 761A, 761G, 764A, 766A, 766B, 911A, 911B, 1010A, 1018A, 1041H, 1041I, 1101B, 1305, 1311, 1317E, LEGISLATION CITED : Corporations Law s 232 Evidence Act 1995 s 140 Trade Practices Act 1974 (Cth) s 51A Uniform Civil Procedure Rules 2005 rr 14.28, 28.1, 29.9