Kelbush Pty Ltd v ANZ [2015] WASC 117

[sjy]

Kelbush Pty Ltd v ANZ [2015] WASC 117 (PDF)
7 April 2015

This litigation arises out of the Forge liquidation. The plaintiff is a creditor who (it is inferred) does not expect to receive 100 cents in the dollar. It alleges that ANZ may be liable for misleading and deceptive conduct by failing to correct ASX announcements released by Forge, which suggested that Forge retained the support of its creditors (which included ANZ). So the claim, in substance, is that the Australian Consumer Law has the effect of extending the duty in Hedley-Byrne v Heller to the world at large.

Master Sanderson refused the plaintiff's application for pre-action discovery, but accepted the underlying premise of the claim [17]. It only failed because the alleged loss arose from the plaintiffs' performance of a rental agreement. The plaintiff had not shown that, if it was made aware of Forge's (allegedly) parlous financial situation, it would have had the right to terminate or otherwise mitigate its losses from the agreement [18].

This kind of litigation (even if ultimately unsuccessful) is a risk borne by any investor who is seen by the public at large as a substantial backer, or shadow director, of a failed company.