Lewis & Anor v Hickox [2005] NSWSC 516

Lewis & Anor v Hickox [2005] NSWSC 516

The plaintiffs failed because the investment contracts, properly construed, did not impose any personal obligation on Fraser Hickox to repay their capital; any redemption obligation was that of HKST or PFM. The alleged written guarantee was only an unaccepted and conditional offer to purchase the plaintiffs' investment. The pleaded Fair Trading Act 1987 claims were not made out because the key representations either were not false or actionable, were not guarantees, or were not shown to have induced the investments. The trust and money had and received claims were not pressed.

Jurisdiction
Australia
Judgment Date
08 June 2005
Procedural Posture
Civil Proceeding in the Equity Division Concerning Contract, Guarantee, and Fair Trading Act Claims Arising From Investments / Final Judgment After Hearing on the Plaintiffs' Further Amended Statement of Claim
Outcome
Further amended statement of claim dismissed.
Legal Topics
['construction and Interpretation of Contracts' 'investment Agreements' 'personal Guarantee' 'misleading or Deceptive Conduct' 'fair Trading Act 1987' 'trust Claim' 'money Had and Received']
['contract Law' 'consumer Protection' 'equity'] ['construction and Interpretation of Contracts' 'investment Agreements' 'personal Guarantee' 'misleading or Deceptive Conduct' 'fair Trading Act 1987' 'trust Claim' 'money Had and Received']

Case Brief

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Procedural Posture

Civil Proceeding in the Equity Division Concerning Contract, Guarantee, and Fair Trading Act Claims Arising From Investments / Final Judgment After Hearing on the Plaintiffs' Further Amended Statement of Claim

Legal Issues

  1. 1 ["Whether the investment arrangements required Fraser Hickox personally to repay the plaintiffs' capital on request" "Whether Fraser Hickox gave a personal guarantee of repayment of the plaintiffs' investments" 'Whether representations made by Fraser Hickox were misleading or deceptive, unconscionable, or otherwise contravened the Fair Trading Act 1987' 'Whether the plaintiffs established any entitlement to relief for trust or money had and received claims']

Ratio Decidendi

The plaintiffs failed because the investment contracts, properly construed, did not impose any personal obligation on Fraser Hickox to repay their capital; any redemption obligation was that of HKST or PFM. The alleged written guarantee was only an unaccepted and conditional offer to purchase the plaintiffs' investment. The pleaded Fair Trading Act 1987 claims were not made out because the key representations either were not false or actionable, were not guarantees, or were not shown to have induced the investments. The trust and money had and received claims were not pressed.

Court Disposition

Further amended statement of claim dismissed.

Orders

  • ['The further amended statement of claim should be dismissed.' 'The parties were directed to bring in short minutes of orders reflecting the reasons.' 'The Court indicated it would hear the parties on the appropriate terms of orders and on costs.']