Cam & Bear Pty Ltd v McGoldrick [2016] NSWSC 1894

Supreme Court New South Wales

Medium Neutral Citation: Cam & Bear Pty Ltd v McGoldrick [2016] NSWSC 1894 Hearing dates: 3 – 5 March 2015, 9 April 2015, 12, 25 June 2015, 24 July 2015 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment for the defendant;

(2) The plaintiff shall pay the defendant's costs of and incidental to the proceedings, not previously covered by a costs order;

(3) The parties have liberty, within seven days, to make application for a different or special order as to costs by submission of no more than three pages in length, accompanied by any document upon which the application relies that is not otherwise in evidence. Any party affected by such application may respond within a further seven days by submission of no more than three pages in length, accompanied by any other document not otherwise in evidence;

(4) Proceedings dismissed. Catchwords: NEGLIGENCE – breach of duty by auditor – discussion of duty of auditor to self-managed superannuation fund – causation – breach of duty did not occasion loss – action dismissed;

TRADE PRACTICES – misleading or deceptive conduct – audit certificate represents fair state of affairs reported in financial statements – misleading and/or deceptive – no loss occasioned by misrepresentation. Legislation Cited: Australian Consumer Law (NSW) Australian Securities and Investments Commission Act 2001 (Cth) Civil Liability Act 2002 (NSW) Fair Trading Act 1987 (NSW) Superannuation Industry (Supervision) Act 1993 (Cth) Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 Dovuro Pty Limited v Wilkins (2003) 215 CLR 317; [2003] HCA 51 New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Category: Principal judgment Parties: Cam & Bear Pty Ltd ACN 139 844 741 (Plaintiff) John McGoldrick (Defendant) Representation: Counsel: G Drew / C Lee(Plaintiff) P A Horvath / N Oreb (Defendant)