Damiano and Caterina Marando v Swan & Baker Pty Limited & Anor [2012] NSWDC 131

Damiano and Caterina Marando v Swan & Baker Pty Limited & Anor [2012] NSWDC 131

While the defendants did not make the alleged misleading or unconscionable representations, they breached their duty of care by failing to notify the plaintiffs during the cooling off period of their right to withdraw their investment after the Fund's redemption period was unexpectedly extended, and this breach was causative of the plaintiffs' loss, entitling them to damages.

Jurisdiction
Australia
Judgment Date
30 August 2012
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the plaintiffs against both defendants for damages of $377,390.00 plus costs.
Legal Topics
['misleading and Deceptive Conduct' 'unconscionable Conduct' 'negligence' 'financial Advice' 'duty of Care']
['tort Law' 'consumer Law' 'equity' 'professional Negligence'] ['misleading and Deceptive Conduct' 'unconscionable Conduct' 'negligence' 'financial Advice' 'duty of Care']

Case Brief

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['Whether the defendants engaged in misleading and deceptive conduct contrary to s 52 TPA and s 38 FTA' 'Whether the defendants engaged in unconscionable conduct under s 12CB ASIC Act or s 51AC TPA or at general law' 'The scope and breach of the duty of care owed by the defendants to the plaintiffs as their accountant including investment advice' 'Causation and loss arising from any breach']

Ratio Decidendi

While the defendants did not make the alleged misleading or unconscionable representations, they breached their duty of care by failing to notify the plaintiffs during the cooling off period of their right to withdraw their investment after the Fund's redemption period was unexpectedly extended, and this breach was causative of the plaintiffs' loss, entitling them to damages.

Court Disposition

Judgment for the plaintiffs against both defendants for damages of $377,390.00 plus costs.

Orders

  • ['Judgment for the Plaintiffs against the First and Second Defendants in the sum of $377,390.00.' "The Defendants to pay the Plaintiffs' costs." 'The Exhibits to be returned.' 'Liberty to Apply in respect of costs on 7 days notice.']