Redmond Family Holdings v GC Access Pty Ltd & Ors [2016] NSWSC 796

Supreme Court New South Wales

Medium Neutral Citation: Redmond Family Holdings v GC Access Pty Ltd & Ors [2016] NSWSC 796 Hearing dates: 6 – 8 and 27 April 2016 Decision date: 16 June 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: Plaintiff successful in certain of the misleading or deceptive conduct claims against Fourth and Fifth Defendants. Parties to be heard as to costs. Catchwords: TRADE PRACTICES – Misleading or deceptive conduct claims under s 18 of the Australian Consumer Law, 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – where plaintiff asserted various misleading or deceptive conduct claims against defendants in respect of the plaintiff's purchases of shares in companies – where some of the claims against particular defendants were based on non-disclosure of loans owed by the companies to entities associated with those defendants that could be converted into equity at their discretion – where right to convert loans to equity was subsequently exercised thereby diluting plaintiff's equity in the companies and depriving plaintiff of control of the companies – whether any representations were misleading or deceptive and if so whether they were causative of plaintiff's loss – whether plaintiff's misleading or deceptive conduct claims based on defendants' non-disclosure of information succeeds – whether plaintiff is a concurrent wrongdoer under s 34 of the Civil Liability Act 2002 (NSW) such that if the plaintiff were to succeed each of the defendant's liability should be limited to an amount proportionate to each of the defendant's responsibility for plaintiff's loss.

PROCEDURE – Costs – where plaintiff was only successful against some of the defendants and on a narrower basis than argued – whether costs should follow the event. Legislation Cited: - Australian Consumer Law, ss 4, 18, 236 - Australian Securities and Investments Commission Act 2001 (Cth), ss 12BAB, 12BB, 12DA, 12GF - Competition and Consumer Act 2010 (Cth) - Civil Liability Act 2002 (NSW), ss 34, 35 - Corporations Act 2001 (Cth), ss 769C, 1041H, 1041I - Evidence Act 1995 (Cth), s 136 - Fair Trading Act 1987 (NSW), s 42 - Trade Practices Act 1974 (Cth), ss 51A, 52 Cases Cited: - Ambergate Ltd v CMA Corporation Ltd (admins apptd) [2016] FCA 94 - APIR Systems Ltd v Donald Financial Enterprises Pty Ltd [2009] FCAFC 45 - Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 - Australian Competition and Consumer Commission v Jewellery Group Pty Ltd [2012] FCA 848; (2012) 293 ALR 335 - Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] FCA 1904; (2007) 244 ALR 470 - Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 - Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd [2006] VSC 192; (2006) 57 ACSR 553 - Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 - Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 - Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 - Carey v Freehills [2013] FCA 954; (2013) 303 ALR 445 - Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608; (1993) ATPR 41-203 - Digi-Tech (Aust) Ltd v Brand [2004] NSWCA 58; (2004) 62 IPR 184 - Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 - Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167 - Forty Two International Pty Ltd v Barnes [2014] FCA 85; (2014) 97 ACSR 450 - Fraser v NRMA Holdings Ltd (1995) 55 FCR 452; 127 ALR 543; 15 ACSR 590 - Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 - Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 - Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; (2008) 73 NSWLR 653 - Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; 241 CLR 357 - Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 - North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1 - Owners – Strata Plan 61162 v Lipman [2014] NSWSC 622 - OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 - Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 - Pramoko v Grande Enterprises (2016) 108 ACSR 469 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 - Re HIH Insurance Limited (in liq) [2016] NSWSC 482 - Rennie Golledge Pty Ltd v Ballard [2012] NSWCA 376; (2012) 82 NSWLR 231 - Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94 - Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 - Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97; 111 ALR 649 Category: Principal judgment Parties: Redmond Family Holdings Pty Limited (Plaintiff) GC Access Pty Limited (First Defendant) Fullham Hall Pty Limited (Second Defendant) H Ridge Investments Pty Limited (Third Defendant) Patrick Charles Oliver Stone (Fourth Defendant) Mark Henry Skinner (Fifth Defendant) Nicholas Simon Collins (Sixth Defendant) Representation: Counsel: M Bennett (Plaintiff) B Le Plastrier (Second to Sixth Defendants)