Gary Sydney Green & Anor v AMP Financial Planning Pty Ltd & Ors [2008] NSWSC 1164

Gary Sydney Green & Anor v AMP Financial Planning Pty Ltd & Ors [2008] NSWSC 1164

AMP Capital's failure to disclose its decision to redeem its Global Technology Fund units was not misleading or deceptive or likely to mislead or deceive because the plaintiffs had no reasonable expectation of being told of an investment decision by AMP Capital where no part of the decision was based on any view, negative or otherwise, about the fund's future prospects or likely performance. The plaintiffs also failed to prove causation because the objective evidence showed that, even if told of the decision, they would not have redeemed their units. The cross-claim succeeded because Mr Green's only defence was an equitable set-off based on his failed damages claim against AMP Life.

Jurisdiction
Australia
Judgment Date
05 December 2008
Procedural Posture
Claim for Misleading or Deceptive Conduct Concerning Managed Investment Scheme Units and Cross Claim for Repayment of Loan Money / Principal Judgment After Hearing
Outcome
Plaintiffs' claim against the defendants dismissed with costs; judgment for the second cross-claimant AMP Life against the first cross-defendant Mr Green on the cross-claim.
Legal Topics
['misleading or Deceptive Conduct' 'trade Practices Act 1974 (cth) S 52' 'australian Securities and Investments Commission Act 1989 (cth) S 12 Da' 'non Disclosure and Silence' 'managed Investment Schemes' 'causation and Damages' 'margin Loans' 'equitable Set Off']
['trade and Commerce' 'consumer Protection' 'corporations' 'damages'] ['misleading or Deceptive Conduct' 'trade Practices Act 1974 (cth) S 52' 'australian Securities and Investments Commission Act 1989 (cth) S 12 Da' 'non Disclosure and Silence' 'managed Investment Schemes' 'causation and Damages' 'margin Loans' 'equitable Set Off']

Case Brief

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Procedural Posture

Claim for Misleading or Deceptive Conduct Concerning Managed Investment Scheme Units and Cross Claim for Repayment of Loan Money / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether AMP Capital's failure to inform the plaintiffs of its February 2001 decision to redeem all of its Global Technology Fund units was misleading or deceptive or likely to mislead or deceive." 'Whether the plaintiffs would have redeemed all their Global Technology Fund units if told of the decision.' 'When any redemption would have occurred if the plaintiffs had redeemed.' 'Whether any redemption proceeds would have been invested in other AMP funds or first used to discharge margin loans.' 'Whether AMP Life was entitled on its cross-claim to repayment of $102,100 plus interest.']

Ratio Decidendi

AMP Capital's failure to disclose its decision to redeem its Global Technology Fund units was not misleading or deceptive or likely to mislead or deceive because the plaintiffs had no reasonable expectation of being told of an investment decision by AMP Capital where no part of the decision was based on any view, negative or otherwise, about the fund's future prospects or likely performance. The plaintiffs also failed to prove causation because the objective evidence showed that, even if told of the decision, they would not have redeemed their units. The cross-claim succeeded because Mr Green's only defence was an equitable set-off based on his failed damages claim against AMP Life.

Court Disposition

Plaintiffs' claim against the defendants dismissed with costs; judgment for the second cross-claimant AMP Life against the first cross-defendant Mr Green on the cross-claim.

Orders

  • ["The plaintiffs' claim against the defendants is dismissed with costs." 'Judgment for the second cross-claimant, AMP Life, against the first cross-defendant, Mr Green, for $102,100 plus interest at the rate of 14 per cent per annum from 5 April 2002.' "Mr Green is to pay the second cross-claimant's costs of the...