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

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

The plaintiffs failed to establish that Mrs Linder made the pleaded representations or that, if any statements were made, they were relied upon by the plaintiffs as inducing their investment decisions. There was insufficient reliable and corroborated evidence of the representations, and the risk of property value or rental decline was an obvious risk not giving rise to a duty to warn. The mortgage broker owed no prescriptive fiduciary duty to act in the plaintiffs' best interests, and any agency relationship did not result in liability for AMA due to the absence of grounded misconduct. Accordingly, all claims were dismissed.

Parties
First Plaintiff: Anthony Snowden; Second Plaintiff: Janet Snowden; First Defendant: Australian Mortgage Assist Pty Ltd; Second Defendant: Kimberly Linder
Jurisdiction
Australia
Judgment Date
17 December 2019
Procedural Posture
Commercial List Equity Proceeding / Principal Judgment
Outcome
Proceedings dismissed; costs ordered against plaintiffs.
Legal Topics
Misleading or Deceptive Conduct, Australian Consumer Law S 18, Negligence—duty of Care, Fiduciary Duties, Employer Employee Relationship, Agency Liability
Contracts Tort Equity Employment and Agency Misleading or Deceptive Conduct Australian Consumer Law S 18 Negligence—duty of Care Fiduciary Duties +2 more

Case Brief

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Parties

Anthony Snowden

First Plaintiff

Janet Snowden

Second Plaintiff

Australian Mortgage Assist Pty Ltd

First Defendant

Kimberly Linder

Second Defendant

Procedural Posture

Commercial List Equity Proceeding / Principal Judgment

Legal Issues

  1. 1 Whether the defendants engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law by making representations concerning rent and value of investment properties.
  2. 2 Whether the defendants owed and breached a duty of care in giving alleged investment and financial advice.
  3. 3 Whether a fiduciary relationship and duties existed between the mortgage broker (Linder) and the plaintiffs.

Ratio Decidendi

The plaintiffs failed to establish that Mrs Linder made the pleaded representations or that, if any statements were made, they were relied upon by the plaintiffs as inducing their investment decisions. There was insufficient reliable and corroborated evidence of the representations, and the risk of property value or rental decline was an obvious risk not giving rise to a duty to warn. The mortgage broker owed no prescriptive fiduciary duty to act in the plaintiffs' best interests, and any agency relationship did not result in liability for AMA due to the absence of grounded misconduct. Accordingly, all claims were dismissed.

Court Disposition

Proceedings dismissed; costs ordered against plaintiffs.

Orders

  • The proceedings be dismissed.
  • The plaintiffs pay the defendants' costs of the proceedings.