Tredmore Pty Ltd v Atlas Advisors Australia Pty Ltd [2023] NSWCA 60

Tredmore Pty Ltd v Atlas Advisors Australia Pty Ltd [2023] NSWCA 60

The Court concluded that the oral representation alleged in April 2017 was not made, nor did the evidence support the inference that Ms Zhuang gave an affirmative or implied assurance the investment was 'safe' in the sense of little or no risk. The written representation in the WeChat exchange using 'anquan', as a description of the investment being 'safeguarded by structural means', was falsified where unreasonable structural risks existed—namely, the borrower not owning the properties to be developed nor having contracts for their acquisition or development. Both appeal and cross-appeal failed since the representations, as found or alleged, were not proven to have been made or were...

Parties
First Appellant/first Cross Respondent: Tredmore Pty Ltd as trustee for the Xue Family Trust; Second Appellant/second Cross Respondent: Lijuan Xue; Third Appellant/third Cross Respondent: Lili Xue; First Respondent/cross Appellant: Atlas Advisors Australia Pty Ltd; Second Respondent: Wenyan Zhuang (also known as Fiona Zhuang)
Jurisdiction
Australia
Judgment Date
31 March 2023
Procedural Posture
Appeal and Cross Appeal / Judgment of Court of Appeal
Outcome
Appeal dismissed; Cross-appeal dismissed
Legal Topics
Misleading or Deceptive Conduct, Financial Advice, Investment Scheme, Statutory Interpretation
Corporations Law Financial Services Law Misleading or Deceptive Conduct Financial Advice Investment Scheme Statutory Interpretation

Case Brief

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Parties

Tredmore Pty Ltd as trustee for the Xue Family Trust

First Appellant/first Cross Respondent

Lijuan Xue

Second Appellant/second Cross Respondent

Lili Xue

Third Appellant/third Cross Respondent

Atlas Advisors Australia Pty Ltd

First Respondent/cross Appellant

Wenyan Zhuang (also known as Fiona Zhuang)

Second Respondent

Procedural Posture

Appeal and Cross Appeal / Judgment of Court of Appeal

Legal Issues

  1. 1 Whether oral representations in Mandarin as to the safety of the investment were misleading or deceptive
  2. 2 Whether written representations in Mandarin as to safety of the investment were misleading or deceptive
  3. 3 Whether the lack of property ownership or contracts by the borrower falsified representations of 'safety'

Ratio Decidendi

The Court concluded that the oral representation alleged in April 2017 was not made, nor did the evidence support the inference that Ms Zhuang gave an affirmative or implied assurance the investment was 'safe' in the sense of little or no risk. The written representation in the WeChat exchange using 'anquan', as a description of the investment being 'safeguarded by structural means', was falsified where unreasonable structural risks existed—namely, the borrower not owning the properties to be developed nor having contracts for their acquisition or development. Both appeal and cross-appeal failed since the representations, as found or alleged, were not proven to have been made or were...

Court Disposition

Appeal dismissed; Cross-appeal dismissed

Orders

  • Appeal dismissed.
  • Cross-appeal dismissed.