FINANCIAL WISDOM LTD v NEWMAN and Others

12 VR 79·Eames and Nettle JJA and Williams AJA
12 VR 79
12 VR 79
FINANCIAL WISDOM LTD v NEWMAN and OthersCourt of AppealEames and Nettle JJA and Williams AJA21, 23 March, 10 May 2005[2005] VSCA 110CompaniesSecurities industryLicensed dealers and advisersInvestors’ remediesDefective investment adviceClaims for damagesStatutory liability of indemnifying principal for representativeRepresentative’s conduct engaged in for one of several principalsInvestor’s belief that representative acting on behalf of assumed principal whether or not identified or identifiableStatutory presumption that conduct engaged in as representative of some person among indemnifying principalsWhether third party a “party” to a proceedingCorporations Law ss 819, 820Supreme Court Act 1986 (No 110) s 3..At relevant times, ss 819 and 820 of the Corporations Law relevantly provided as follows:

“819 (1) This section applies where:

  • (a)at a time when a person (in this section called the ‘representative’) is a representative of only one person (in this section called the ‘indemnifying principal’) or of 2 or more persons (in this section called the ‘indemnifying principals’), the representative, whether within or outside this jurisdiction:
    • (i)engages in particular conduct; or
    • (ii)proposes, or represents that the representative proposes, to engage in particular conduct;
  • (b)another person (in this section called the ‘client’) does, or omits to do, a particular act, whether within or outside this jurisdiction, because the client believes at a particular time in good faith that the representative engaged in, or proposes to engage in, as the case may be, that conduct:
    • (i)on behalf of some person (in this section called the ‘assumed principal’) whether or not identified, or identifiable, at that time by the client; and
    • (ii)in connection with a securities business or investment advice business carried on by the assumed principal; and
  • (c)it is reasonable to expect that a person in the client’s circumstances would so believe and would do, or omit to do, as the case may be, that act because of

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12 VR 79

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