CONTRACT – breach of contract – contract for provision of financial services – implied warranties in s 12ED Australian Securities and Investments Commission Act (2001) Cth – damages for breach of contract
CORPORATIONS – financial products – breach of Australian financial services licence under s 912A Corporations Act 2001 (Cth) – meaning of derivative in s 761D(1) of the Corporations Act 2001 (Cth) – meaning of debenture in s 9 of the Corporations Act 2001 (Cth)
CORPORATIONS – misleading and deceptive statements – whether statements based on reasonable grounds and result of exercise of reasonable care and skill – effect of disclaimers
CORPORATIONS – rescission – requirements of s 924A Corporations Act 2001 (Cth) – notice under s 925A – whether notice given within a “reasonable period”
DAMAGES – causation, remoteness, rule in Potts v Miller, contributory negligence, statutory damages
EQUITY – fiduciary obligations – formal advisory relationship arising out of contract – informal advisory relationship arising from conduct – whether breach of fiduciary duty – equitable compensation
INSURANCE – whether insured entity a party to contract of insurance – effect of s 48 Insurance Contracts Act 1984 (Cth) – duty of disclosure – construction of terms
NEGLIGENCE – whether duty of care owed – indeterminate liability – vulnerability – causation –unlawful conduct
RESTITUTION – availability of restitutionary remedies – defence of change of position – requirement of good faith
STATUTORY INTERPRETATION – whether investment permissible under s 625 Local Government Act 1993 (NSW) – whether product a security within the meaning of relevant Ministerial order – consequences if investment impermissible
TRADE PRACTICES – misleading and deceptive conduct – whether conduct engaged in “in this jurisdiction” – whether conduct in relation to financial product or financial services – “mere conduit” – accessorial liability – whether conduct should be excused under s 1317S Corporations Act 2001 (Cth)
2464. I accept S&P’s submission that the case against it involve allegations against professional people and a professional organisation capable of adversely affecting their and the organisation’s reputation. I accept also that these circumstances are relevant given the terms of s 140(2) of the Evidence Act which provides that that the court may take into account in deciding whether it is satisfied that the case has been proved on the balance of probabilities the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
3601. Eighth, the allegation advanced by AHAC involves very serious misconduct. The first and second variations of AHAC’s case involve allegations that LGFS knowingly acting unlawfully or acted with a reckless disregard for whether or not it was acting unlawfully. That is an allegation to which the reasoning in Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336 (and s 140(2) of the Evidence Act ) applies. There is no proof of the cogency required to sustain AHAC’s allegation. The evidence points overwhelmingly to LGFS believing that it was licensed to deal in and advise in relation to the Rembrandt notes.