Agnish Pty Limited v Folio Invest Pty Limited (No 4) [2020] FCA 120

Agnish Pty Limited v Folio Invest Pty Limited (No 4) [2020] FCA 120

The applicant failed to establish that any of the representations made by the respondents prior to entry into the Loan Agreement were misleading or deceptive or likely to mislead or deceive within the meaning of s 18 of the ACL, or under the alternative claims. At the time the statements were made, there was a reasonable basis for them, considering the information available, the applicant's sophistication, and disclaimers. Loss alone after the event does not establish misleading conduct.

Parties
Applicant: Agnish Pty Ltd; First Respondent: Folio Invest Pty Limited; Second Respondent: Folio Property Pty Limited; Third Respondent: Bradley Clive James Bilbie
Jurisdiction
Australia
Judgment Date
13 February 2020
Procedural Posture
Civil / Judgment After Final Hearing
Outcome
Application dismissed with costs.
Legal Topics
Misleading or Deceptive Conduct, Financial Product Advice, Loan Agreements, Australian Consumer Law, Section 18 Liability
Consumer Law Commercial Law Corporations Law Misleading or Deceptive Conduct Financial Product Advice Loan Agreements Australian Consumer Law Section 18 Liability

Case Brief

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Parties

Agnish Pty Ltd

Applicant

Folio Invest Pty Limited

First Respondent

Folio Property Pty Limited

Second Respondent

Bradley Clive James Bilbie

Third Respondent

Procedural Posture

Civil / Judgment After Final Hearing

Legal Issues

  1. 1 Whether representations made prior to entering into a loan agreement were misleading or deceptive under s 18 of the Australian Consumer Law; whether alternative claims under s 12DA of the ASIC Act and s 1041H of the Corporations Act were established

Ratio Decidendi

The applicant failed to establish that any of the representations made by the respondents prior to entry into the Loan Agreement were misleading or deceptive or likely to mislead or deceive within the meaning of s 18 of the ACL, or under the alternative claims. At the time the statements were made, there was a reasonable basis for them, considering the information available, the applicant's sophistication, and disclaimers. Loss alone after the event does not establish misleading conduct.

Court Disposition

Application dismissed with costs.

Orders

  • The originating application filed on 12 June 2018 be dismissed.
  • The applicant pay the third respondent's costs, as agreed or taxed.