Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust (No 2) [2022] NSWSC 557

Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust (No 2) [2022] NSWSC 557

Gilmore Finance failed to establish that A1, A3 or Mr Amirbeaggi made the alleged actionable representations, except possibly the ambiguous subscription response, or that Mr Wayman had authority to make representations on their behalf. It also failed to prove reliance or causation, particularly because the true position about other investors' contributions was revealed and Gilmore Finance elected to maintain and increase its investment. The under-contribution, discounted units, accounting, unauthorised transaction and trustee removal claims also failed because the relevant transactions were agreed to or known by Gilmore Finance, no actionable loss or prejudice was shown, and no conduct...

Jurisdiction
Australia
Judgment Date
10 May 2022
Procedural Posture
Equity Commercial List; Misleading or Deceptive Conduct and Trusts Claims / Principal Judgment After Hearing
Outcome
Proceedings dismissed with costs.
Legal Topics
['misleading or Deceptive Conduct' 'australian Consumer Law S 18' 'investment in Unit Trusts' 'agency' 'reliance and Causation' 'fiduciary Duties of Trustees' 'trust Accounting Records' 'removal of Trustees' 'unauthorised Trust Transactions']
['consumer Law' 'trusts and Trustees' 'equity'] ['misleading or Deceptive Conduct' 'australian Consumer Law S 18' 'investment in Unit Trusts' 'agency' 'reliance and Causation' 'fiduciary Duties of Trustees' 'trust Accounting Records' 'removal of Trustees' 'unauthorised Trust Transactions']

Case Brief

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Procedural Posture

Equity Commercial List; Misleading or Deceptive Conduct and Trusts Claims / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether A1, A3 or Mr Amirbeaggi made or were responsible for alleged misleading or deceptive representations about the identity and level of contributions of other investors in the Kingswood Project and Hospital Project.' 'Whether Mr Wayman was an agent of A1, A3 or Mr Amirbeaggi for the purpose of obtaining funding from Mr Gilmore or making representations to him.' 'Whether Gilmore Finance relied on alleged representations in deciding to invest and suffered loss because of them.' "Whether A3, Ms Conway and Ms Yates breached the Hospital Trust Unitholders' Agreement by under-contributing to completion of the Hospital Land purchase." 'Whether A3 issued units to Ms Conway and Ms Yates at an improper discount in breach of fiduciary duties.' 'Whether A1 and A3 failed to maintain or provide proper financial records and accounts.' "Whether borrowings, legal fees or other transactions were unauthorised under the relevant unitholders' agreements." 'Whether A1 and A3 should be removed as trustees.']

Ratio Decidendi

Gilmore Finance failed to establish that A1, A3 or Mr Amirbeaggi made the alleged actionable representations, except possibly the ambiguous subscription response, or that Mr Wayman had authority to make representations on their behalf. It also failed to prove reliance or causation, particularly because the true position about other investors' contributions was revealed and Gilmore Finance elected to maintain and increase its investment. The under-contribution, discounted units, accounting, unauthorised transaction and trustee removal claims also failed because the relevant transactions were agreed to or known by Gilmore Finance, no actionable loss or prejudice was shown, and no conduct...

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['Proceedings to be dismissed with costs.']