Swan & Baker Pty Limited v Marando [2013] NSWCA 233

Swan & Baker Pty Limited v Marando [2013] NSWCA 233

In the circumstances, the accountants’ duty of care extended beyond initial advice to include a positive obligation to inform the respondents of their entitlement to withdraw under the PDS ‘cooling off’ provisions after the Fund froze redemptions, as the risk of loss became real, foreseeable, and avoidable. Mr Legat’s failure to act was a breach of this duty and caused the respondents’ loss.

Parties
First Appellant: Swan & Baker Pty Limited; Second Appellant: James Legat; First Respondent: Damiano Marando; Second Respondent: Caterina Marando
Jurisdiction
Australia
Judgment Date
24 July 2013
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal dismissed
Legal Topics
Accountant's Failure to Advise on Cooling Off Period, Duty of Care of Accountants, Loss of Opportunity, Scope of Professional Duty
Torts Professional Negligence Accountant's Failure to Advise on Cooling Off Period Duty of Care of Accountants Loss of Opportunity Scope of Professional Duty

Case Brief

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Parties

Swan & Baker Pty Limited

First Appellant

James Legat

Second Appellant

Damiano Marando

First Respondent

Caterina Marando

Second Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the duty of care owed by accountants extended to advising clients during the cooling off period post-investment
  2. 2 Whether there was a breach of duty for failure to inform of the right to withdraw after negative developments
  3. 3 Whether the loss was caused by the breach

Ratio Decidendi

In the circumstances, the accountants’ duty of care extended beyond initial advice to include a positive obligation to inform the respondents of their entitlement to withdraw under the PDS ‘cooling off’ provisions after the Fund froze redemptions, as the risk of loss became real, foreseeable, and avoidable. Mr Legat’s failure to act was a breach of this duty and caused the respondents’ loss.

Court Disposition

Appeal dismissed

Orders

  • The appellants pay the respondents' costs.