Page:Potts v National Australia Bank Limited.pdf/6

Gageler CJ Gordon J Edelman J Steward J Gleeson J

representation was falsified by three pieces of information provided by DSHE to NAB because each was "misleading by omission in [a] material respect as at the date provided", within the meaning of cl 21.1(t). Neither the primary judge nor the Court of Appeal had made findings to this effect.

Senior counsel for Mr Potts acknowledged this deficiency in the factual basis for the appeal, but sought to overcome it by arguing, variously, that: the falsity of the cl 21.1(t) representation had been admitted by NAB on the pleadings; the falsity was an obvious inference from the facts as found; and the primary judge and the Court of Appeal had failed to deal with Mr Potts' case by omitting to find those facts. Contending that the Court of Appeal erred by identifying DSHE's knowledge of the falsity of the cl 21.1(t) representation as a relevant issue when the representation was one of historical fact, Mr Potts submitted that his liability for NAB's loss should be limited to no more than 50 per cent, taking into account DSHE's comparative culpability.

Special leave to appeal would not have been granted to address the arguments made by Mr Potts at the hearing of the appeal. None of those arguments raised a question of law of public importance or met any of the other criteria for a grant of special leave to appeal.

Moreover, none of Mr Potts' contentions concerning the deficient factual basis for the appeal were made out. The Court of Appeal was correct to say that Mr Potts' proportionate liability defences omitted an identification of the facts which constituted breaches of the cl 21.1(t) representation by DSHE as an entity independently of Mr Potts. It is sufficient to observe that Mr Potts' defences did not allege that any of the three pieces of information relied upon in this Court was misleading in a material respect at the date provided, so as to render the cl 21.1(t) representation misleading or deceptive. Consequently, NAB's admission, that the cl 21.1(t) representation was misleading or deceptive by reason of DSHE's failure to disclose to NAB various pleaded matters prior to entry into the agreements that included the SFA, did not encompass an admission that the cl 21.1(t) representation was misleading or deceptive by reason of omissions from any of those pieces of information.