Tomasetti v Brailey [2012] NSWCA 399

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tomasetti v Brailey [2012] NSWCA 399 Hearing dates: 15, 16, 17, 18, 19 October 2012 Decision date: 11 December 2012 Before: McColl JA at [1] Campbell JA at [2] Macfarlan JA at [3] Decision: (1) The appeals of Mr Tomasetti and Tomasetti Investments Pty Ltd are dismissed. (2) The appeal by Ms Cordony in relation to her claims against the first and fourth respondents is allowed. (3) Set aside the judgment for the first and fourth respondents entered on 17 November 2011 in relation to the claims of Ms Cordony. (4) Set aside the order made on 17 November 2011 that Ms Cordony pay the first and fourth respondents' costs at first instance as agreed or assessed. (5) Remit the proceedings to the primary judge, so far as they relate to Ms Cordony's claims against the first and fourth respondents, for the purpose of: (a) Determining the issue of whether Ms Cordony's loss was caused by the first and fourth respondents' conduct. (b) Making such orders (including as to the costs of the proceedings at first instance) as he considers appropriate having regard to his determination of that issue and these reasons for judgment. (6) Order Mr Tomasetti and Tomasetti Investments Pty Ltd to pay 90 per cent of the respondents' costs of the appellants' appeals. (7) Order the first and fourth respondents to pay Ms Cordony's costs of her appeal so far as it relates to them. (8) The first and fourth respondents to have a certificate under the Suitors' Fund Act 1951, if qualified, in relation to their costs of Ms Cordony's appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TRADE AND COMMERCE - misleading or deceptive conduct - s 42 Fair Trading Act 1987 (NSW) - first respondent financial adviser made representations as to present and future matters regarding managed agricultural investment schemes - whether adviser adequately apprised appellants of investment risks - whether provision of prospectus and product disclosure statements was sufficient to convey risk - whether appellants proved content of conversations with adviser - obligation of a claimant to prove the whole of a defendant's relevant conduct - whether primary judge paid adequate regard to concessions made in cross-examination - reliability of concessions against interest - whether respondent had reasonable grounds for making representations as to future matters - causation - whether appellants would have proceeded with investments despite knowledge of risks - whether causation issue should be remitted to primary judge for determination