Richards v Macquarie Bank Limited (No 2) [2012] FCA 1403

Richards v Macquarie Bank Limited (No 2) [2012] FCA 1403

The tendency evidence from the 12 Storm investors did not have significant probative value in proving that Storm, through Ms Seymour or Mr Drummond, made the pleaded representations to Mrs Richards. Most alleged risk representations were not strikingly similar to the pleaded no-risk representations because they...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Civil Proceeding Involving Alleged Misleading or Deceptive Representations and an Evidentiary Tendency Evidence Issue / Ruling During Trial on Admissibility of Tendency Evidence Under S 97 of the Evidence Act 1995 (cth)
Outcome
Tendency evidence ruled inadmissible.
Legal Topics
['tendency Evidence' 'significant Probative Value' 'admissibility of Evidence' 'misleading or Deceptive Conduct' 'financial Advice Representations']
['evidence' 'practice and Procedure' 'consumer Protection'] ['tendency Evidence' 'significant Probative Value' 'admissibility of Evidence' 'misleading or Deceptive Conduct' 'financial Advice Representations']

Source-derived case record

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Procedural Posture

Civil Proceeding Involving Alleged Misleading or Deceptive Representations and an Evidentiary Tendency Evidence Issue / Ruling During Trial on Admissibility of Tendency Evidence Under S 97 of the Evidence Act 1995 (cth)

Legal Issues

  1. 1 ['Whether evidence from 12 other Storm investors about representations made by Storm financial advisers was tendency evidence with significant probative value under s 97(1)(b) of the Evidence Act 1995 (Cth).' 'Whether alleged representations to other Storm investors showed a tendency of Storm, through its financial advisers, to make representations that there was no risk associated with investing according to the Storm investment strategy.' 'Whether the tendency evidence should be excluded under s 135 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The tendency evidence from the 12 Storm investors did not have significant probative value in proving that Storm, through Ms Seymour or Mr Drummond, made the pleaded representations to Mrs Richards. Most alleged risk representations were not strikingly similar to the pleaded no-risk representations because they focused on loss of a home or capital, were qualified, or did not mention risk. The only strikingly similar representation was made by a different adviser, at a different location, and one to five years before the alleged representations to Mrs Richards, so its probative value was outweighed by differences in timing and circumstances. Viewed as corporate conduct of Storm, the...

Court Disposition

Tendency evidence ruled inadmissible.

Orders

  • ['The tendency evidence contained in the statements of the 12 Storm investors may not be admitted as evidence in the trial.' 'It was unnecessary to consider whether the tendency evidence should be excluded under s 135 of the Evidence Act 1995 (Cth).']