Gunns Finance Pty Ltd (Receivers and Managers Appointed)(in Liquidation) v Sithiravel [2016] NSWSC 1543

Supreme Court New South Wales

Medium Neutral Citation: Gunns Finance Pty Ltd (Receivers and Managers Appointed)(in Liquidation) v Sithiravel [2016] NSWSC 1543 Hearing dates: 1 – 2 February 2016; submissions completed 23 August 2016 Decision date: 02 November 2016 Jurisdiction: Equity Before: Robb J Decision: See pars 318 – 322 Catchwords: AGENCY – relationship between financial planner (second cross defendant), and plaintiff and related companies – whether financial planner, as the introducer, had actual authority to act on behalf of the plaintiff and related companies – court considered relationship between the parties – held actual agency relationship not established – whether financial planner had ostensible agency – held there was no holding out by the plaintiff of authority to the extent that justifies the court in finding ostensible agency – no evidence from defendant/cross claimant that he relied upon any representation constituting any holding out – relationship between plaintiff and related companies – whether agency relationship existed – held actual agency relationship not established

CONTRACTS – breach of contract – whether representations in product disclosure statements incorporated as terms of contract– held representations not terms of contract

TRADE PRACTICES ACT – plaintiff linked credit provider – not established that supplier to whom plaintiff was linked is liable to defendant/cross claimant – defendant/cross claimant not entitled to compensation from plaintiff

CONTRACTS REVIEW ACT – whether there was procedural injustice in the manner in which loan agreements were formed – circumstances of how agreements were entered into considered – no evidence from defendant/cross claimant as to what he would have done if circumstances different – plaintiff not aware of the circumstances in which the financial planner assisted the defendant/cross claimant to apply for finance – held court found no injustice – plaintiff innocent in accepting loan application – defendant/cross claimant entitled to compensation from financial planner who is responsible for procedural injustice – held plaintiff entitled to enforce loan agreements against the defendant/cross claimant under the contracts