Snowden v Australian Mortgage Assist Pty Ltd [2019] NSWSC 1799

Supreme Court New South Wales

Medium Neutral Citation: Snowden v Australian Mortgage Assist Pty Ltd [2019] NSWSC 1799 Hearing dates: 25 to 27 November 2019 and 2 December 2019 Decision date: 17 December 2019 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) The proceedings be dismissed.

(2) The plaintiffs pay the defendants' costs of the proceedings.

(3) Leave to any party to make an application to vary order (2) on or before 7 February 2020. Catchwords: CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – whether representations were made – inadequacy and unreliability of plaintiffs' evidence – relevant events occurred many years ago – errors evident in evidence of both plaintiffs – plaintiffs' evidence contradicted by relevant documents and other evidence – plaintiffs' evidence not accepted unless corroborated by documents or objective facts – plaintiffs' evidence clearly based on discussion and agreement between themselves rather than independent recollection – plaintiffs' perceptions of what was said – how alleged representations should be objectively understood – plaintiffs' evidence not accepted except to extent that it involves admissions or is inherently probable CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – whether representations were misleading or deceptive – section 4 of the Australian Consumer Law – whether representations were with respect to future matters –– whether there were reasonable grounds for representations – evidence required to be adduced by representor CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – reliance on alleged representations – whether representations were relied on – calculation of loss – appropriate method for assessing loss – Potts v Miller – whether circumstances that brought about loss can be considered as arising from alleged wrongful conduct or whether loss is extrinsic to that conduct – inadequate evidence from plaintiffs TORT – Negligence – Duty of Care – whether relationship was one which gave rise to duty to take reasonable care to give investment advice – consideration of 'salient features' and circumstances of relationship – vulnerability – reasonable reliance – application of section 5H of the Civil Liability Act 2002 (NSW) – whether risk associated with investments could be considered 'obvious risk' under section 5F of Civil Liability Act 2002 (NSW) EQUITY – Fiduciary relationships – Hospital Products Ltd v United States Surgical Corporation applied – whether fiduciary relationship existed between mortgage broker and clients – fiduciary duties – proscriptive fiduciary duties only – no positive duty to act in plaintiffs' best interests EMPLOYMENT AND AGENCY – employment – whether relationship of employer and employee – consideration of circumstances and features of relationship – indicia of relationship of employment – agency – consideration of circumstances and features of relationship – indicia of agency relationship – whether principal liable for conduct of agent Legislation Cited: Australian Consumer Law Civil Liability Act 2002 (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Breen v Williams (1995) 186 CLR 71 Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258 City of Botany Bay Council v Jazabas Pty Ltd (ACN 060 105 053) [2001] NSWCA 94 Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 Cummings v Lewis (1993) 41 FCR 599 Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 Potts v Miller (1940) 64 CLR 282 Sliteris v Ljubic [2014] NSWSC 1632 South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Watson v Foxman (1995) 49 NSWLR 315 Willett v Thomas [2012] NSWCA 97 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 Wyse & Young International Pty Limited v Sanna [2019] NSWSC 683 Category: Principal judgment Parties: Anthony Snowden (First Plaintiff) Janet Snowden (Second Plaintiff) Australian Mortgage Assist Pty Ltd (First Defendant) Kimberly Linder (Second Defendant) Representation: Counsel: D Moujalli (Plaintiffs) SE Gray (First Defendant) DA Lloyd (Second Defendant)