Tomasetti v Brailey [2013] NSWSC 1282

Tomasetti v Brailey [2013] NSWSC 1282

Mr Brailey expressly recommended that Ms Cordony invest in the agribusiness schemes, and that recommendation carried an implicit representation that the schemes were suitable for her personal circumstances. The defendants' neutral-proposal counterfactual was speculative and did not correspond to the contravening conduct. If the recommendation had been suitably qualified by stating that the schemes were not in material respects suitable for Ms Cordony, it was not reasonable to conclude that she would nonetheless have entered the investments. Mr Brailey's conduct was therefore causative of Ms Cordony's loss, and the remoteness argument was rejected. Damages were assessed at $247,366 as at...

Jurisdiction
Australia
Judgment Date
09 September 2013
Procedural Posture
Claim for Damages for Misleading or Deceptive Conduct, Negligence and Related Causes Arising From Financial Advice About Agricultural Managed Investment Schemes / Remittal From the Court of Appeal on Causation and Quantum, Determined on the Papers
Outcome
Judgment and verdict for the second plaintiff against the first and fourth defendants.
Legal Topics
['misleading or Deceptive Conduct' 'financial Adviser Recommendations' 'agricultural Managed Investment Schemes' 'reliance' 'causation' 'remoteness' 'quantum of Damages' 'costs']
['trade and Commerce' 'consumer Protection' 'negligence' 'financial Services' 'damages'] ['misleading or Deceptive Conduct' 'financial Adviser Recommendations' 'agricultural Managed Investment Schemes' 'reliance' 'causation' 'remoteness' 'quantum of Damages' 'costs']

Case Brief

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Procedural Posture

Claim for Damages for Misleading or Deceptive Conduct, Negligence and Related Causes Arising From Financial Advice About Agricultural Managed Investment Schemes / Remittal From the Court of Appeal on Causation and Quantum, Determined on the Papers

Legal Issues

  1. 1 ["Whether Mr Brailey's recommendation caused Ms Cordony's loss, including whether she would have proceeded with the investments if the advice had been suitably qualified or if the investments had not been recommended to her." "Whether the defendants' proposed counterfactual of a neutral investment proposal should be accepted." 'Whether the loss was too remote because the schemes failed for reasons unrelated to the matters misrepresented.' 'What quantum of damages should be awarded to Ms Cordony.']

Ratio Decidendi

Mr Brailey expressly recommended that Ms Cordony invest in the agribusiness schemes, and that recommendation carried an implicit representation that the schemes were suitable for her personal circumstances. The defendants' neutral-proposal counterfactual was speculative and did not correspond to the contravening conduct. If the recommendation had been suitably qualified by stating that the schemes were not in material respects suitable for Ms Cordony, it was not reasonable to conclude that she would nonetheless have entered the investments. Mr Brailey's conduct was therefore causative of Ms Cordony's loss, and the remoteness argument was rejected. Damages were assessed at $247,366 as at...

Court Disposition

Judgment and verdict for the second plaintiff against the first and fourth defendants.

Orders

  • ['The first and fourth defendants to pay the second plaintiff the sum of $247,366 as at 30 June 2013 calculated to the date of judgment.' "The parties should confer on the final calculation of the damages applying the methodology of the second plaintiff's submission in reply dated 23 July 2013 and should file...