Considerations
61 The appellants emphasise a number of features of the Crescent Wealth Funds which, they say, differentiate the activities of Crescent Wealth from the investment activities of Crescent Capital.
62 First, 80% to 90% of Crescent Wealth's business activity is concerned with the investment of superannuation monies in and across the four Sharia compliant managed investment funds. The remaining 10% to 20% of its activities are concerned with direct investments into and across those funds. Thus, 100% of its business activities for investors are concerned with Sharia compliant investing.
63 Second, investments in the funds are designed for and available to retail investors and the superannuation product has no minimum investment requirement. The minimum investment threshold for direct investment into any one of the Funds is $5,000: PJ at [23].
64 Third, the investments are low risk/low return investments: the superannuation investments target 2% to 4% above the inflation rate; the Australian Equity Fund targets a return of 6.8%; the International Equity Fund targets "capital growth over the long term with total return [after fees] above the MSCI World Islamic [ex-Australia] Index expressed in AUD [unhedged]"; the Diversified Property Fund targets a return 3% above the Reserve Bank of Australia ("RBA") cash rate; and the Islamic Cash Fund (a cash management fund) targets a return "above" the RBA cash rate.
65 Fourth, the funds distribute returns regularly.
66 Fifth, investments can be withdrawn at any time.
67 Sixth, the Crescent Wealth Funds are managed by third party professional managers rather than Crescent Wealth as it says that it does not have the expertise to manage investment funds.
68 Seventh, all of the funds are Sharia compliant funds.
69 The appellants contrast these seven features with those that, they say, characterise the Crescent Capital investments and thus the focus of Crescent Capital's activities (and those investors with whom it engages).
70 First, Crescent Capital opens funds (every three to five years) and raises from investors a target fund amount or keeps the fund open for investment for a set time and then closes the fund.
71 Second, by this method, it offers highly sophisticated investors an opportunity, through the Funds, to make private equity investments: a fundamentally different class of investments, they say, to that offered through the Crescent Wealth Funds.
72 Third, funds are invested for the 10 year life of the particular Fund.
73 Fourth, the business model involves investing fund monies in small to medium enterprises by taking equity, engaging directly in the conduct of the undertaking to lift proper performance and then securing a trade sale or a listing of relevant securities on an exchange.
74 Fifth, the required rate of return is significant.
75 Sixth, the required rate of return is high because the investments are high risk.
76 Seventh, private equity investments are a way in which highly sophisticated investors diversify their investments across a portfolio of investments and private equity investments are only suitable as a small percentage of a sophisticated investor's total portfolio.
77 Eighth, the traditional or main asset classes for investment are said to be cash, fixed interest, property and shares whereas private equity investments in non-listed entities are regarded as investments in "alternative" assets with returns which differ from investments in traditional asset classes and which "provide diversification". The appellants say that this characterisation of traditional asset classes on the one hand and alternative assets (including private equity investments) on the other hand, and, diversification advantages for an investor's total investment portfolio can be seen in the text of the AON Master Trust document (AB, Tab 9.1, p 1141) and the van Eyk Research Report. As to the Trust document, it recognises that: "Alternative assets would be expected to have a pattern of returns that differs from traditional assets and thus they are expected to provide diversification".
78 The appellants' emphasis on this feature of private equity investments as compared with traditional asset classes is inherently difficult. Although the point is advanced to seek to demonstrate differentiation in the focus and investment activities of Crescent Capital (and its dedication to serving and offering private equity opportunities to investors) from the focus and investment activities of Crescent Wealth, the point necessarily recognises (supported by the material) that those investors looking to invest in funds enabling of private equity investments (with the possibility of high returns counter-balanced against corresponding high risks) are likely to be doing so as part of a diversification strategy to balance a portfolio of investments where the private equity investment might make up a small proportion of an investor's portfolio of asset classes comprising a mixture of the "main asset classes" and "alternative assets" including private equity investments and other alternative assets: market mutual funds, hedge funds, commodities and infrastructure.
79 If the underlying investment methodology of those persons who invest in private equity is to secure balance and diversification across a portfolio of investments (including the main asset classes), those investors who engage with Crescent Capital on the discrete and singular issue of the merits of investing in one of its private equity focused funds, are likely to see, engage with or otherwise deal with other financial service and product providers focused upon the main asset classes. Those other providers might well include Crescent Wealth and its four Funds (even though such an investor may not be looking for Sharia compliant investments).
80 The appellants contend that investors who engage with Crescent Capital are highly sophisticated, careful, inquiring and discerning investors who would not be misled, or be likely to be misled, should they engage with Crescent Wealth because the investment offerings of Crescent Wealth (which do not include any aspect of private equity investment) are so fundamentally different from the private equity investment offerings of Crescent Capital that any such investor would not fall into a false view that the service and product offerings of Crescent Wealth were those of Crescent Capital or that Crescent Wealth was associated in some way, shape or form with Crescent Capital. That follows, it is said, also because private equity investments are distinguished from other types of investments and not substitutable for them.
81 Finally, the appellants say that an important point of differentiation is that none of the investments Crescent Capital has offered in its various funds are Sharia compliant and although in its fourth fund, Crescent Capital adopted a "responsible investment policy" (avoiding investments in entities producing, for example, tobacco products), the policy did not compel Sharia compliant investments by its funds: banking, insurance and other financial services remained available investments. The appellants says that although a responsible lending policy might be regarded as a policy of making "ethical investments" there is "a world of difference" between ethical investments on the one hand and Sharia compliant investments on the other hand.
82 In fact, the appellants say that the private equity character of Crescent Capital's sequence of funds (and particularly, relevantly, its most recent two funds), coupled with the notion that an investor in those funds needs to be "a very large institution or an ultra-wealthy individual to participate" (as counsel for Crescent Wealth puts it), renders Crescent Capital's investors, as a cohort, a very narrow silo of investors "entirely differentiated" from the things Crescent Wealth does: never the consumer twain shall meet.
83 It is now necessary to examine aspects of the material in a little detail. I do so by means of a confidential schedule to these reasons which will be published to the parties but not otherwise.
84 Crescent Capital's monthly report for July 2006 to investors for its second fund sets out a list of investors in that fund and the magnitude of their investments. There are 12 identified investors (apart from the last two lines on the list), 11 of which are institutions. On any view, their "Committed Capital" and drawn-down or "Contributed Value" is very substantial: see Confidential Schedule, Box 1. The last two lines on the list are described as "Other Crescent Related Investors" and "Other Crescent Fund I Investors/Friends of Crescent". These last two categories on the list represent persons connected with Crescent Capital and investors who had invested in the first fund and continue to participate in later funds due to their participation at the outset. The appellants say that as to these last two groups of investors, there is simply no prospect of anyone being misled by Crescent Wealth's use of the name "Crescent Wealth" or "Crescent" because these investors are "utterly aware" that Crescent Wealth is not Crescent Capital and are similarly aware of how Crescent Capital differs from Crescent Wealth.
85 In March 2012 the "Monument Group", engaged by Crescent Capital to seek out investors, published a report in relation to the fourth fund. The total number of "Limited Partners" is set out at Confidential Schedule, Box 2. The total investment commitments are set out at Confidential Schedule, Box 3. The investing group is relatively small and the commitments are very substantial. Page 15 of that document sets out a list of investors in Crescent Fund IV which identifies the institutional investors and a group described as "individuals" and another group called "General Partner". These two groups are persons associated with Crescent Capital or partners in Crescent Capital. As before, the appellants say that no investor in either of these two groups could possibly be misled by reason of Crescent Wealth's use of "Crescent Wealth" or "Crescent".
86 As to Crescent Fund V, the minimum investment is very substantial: see Confidential Schedule, Box 4. The minimum investment for Crescent Fund IV was the same amount and expressed in the same way. The minimum investment for Crescent Fund III was also significant: see Confidential Schedule, Box 5. Contextually, the minimum investment in Crescent Fund II was $250,000: PJ at [17]. The appellants say that if it is correct to say that a prudent investor places about 5% to 10% of their investments in private equity high return/high risk investments (as a portfolio balancing exercise) then the total portfolio of each investor making the minimum investment in Crescent Fund IV and Crescent Fund V would, theoretically, be in the range set out in Confidential Schedule, Box 6 which means that the numbers in Confidential Schedule, Box 7 would be invested in other assets. The appellants say that the true character of Crescent Capital's private equity investment activity is reflected in the circumstance that the minimum investment threshold for Crescent Funds IV and V and the likely magnitude of particular investments made into those funds made it necessary for Crescent Capital to establish (for Crescent Fund IV, for example) an electronic data room of documents to enable investors to conduct a due diligence process much along the lines of an acquisition.
87 The appellants say that none of this characterises Crescent Wealth's investment services or products.
88 As to Crescent Wealth's presentation of itself to investors, the appellants say that its Facebook pages use the logo at [42] of these reasons very extensively and extensive emphasis is given to the Islamic compliant character of its investments. For example, the screen shot at AB Tab 5.1, p 50 uses the logo, next to the words:
Professional Development
New Course
Islamic Wealth for Professionals
89 Also at AB Tab 5.1, p 50 the following text occurs next to the logo:
Join us for our next
ISLAMIC SUPER
INFO SESSION
90 Similar references occur in the Facebook screenshots at AB Tab 5.1, pp 49, 52, 54 and 56.
91 All of the Facebook screenshots at Tab 5.1 make extensive use of the logo and extensive reference to the relationship between Crescent Wealth Investments and conformity with Halal or Islamic principles. So too does the website. The screenshots at AB Tab 22 show extensive use of the logo throughout; prominent references to "Australia's First Islamic Wealth Manager"; a description "About Us" in these terms: "Crescent Wealth is Australia's first ultra-ethical wealth manager, offering a superannuation fund as well as a series of managed funds that invest into socially responsible assets based on Islamic investment principles"; details about each of the Board members of The Crescent Wealth Australian Advisory Board, under the heading (and logo): "Australia's First Islamic Wealth Manager"; details about the members of The Crescent Wealth Global Advisory Board under the same heading (and logo); and details about the members of The Crescent Wealth Shariah Supervisory Board (under and by reference to the same heading and logo).
92 The advertising and brochure material relating to the superannuation product emphasises the logo, prominently describes the product as "Islamic Superannuation" and describes Crescent Wealth much in the same terms as the Facebook and website screenshots.
93 Large APN Billboards prominently display the logo, the words "Islamic Superannuation" and the question: "Is your Super Halal? Ours is."
94 The Product Disclosure Statement ("PDS") for the Crescent Wealth Superannuation Fund displays the logo and tells the reader, apart from a range of required information, the following:
1. About Crescent Wealth Super
Crescent Wealth is Australia's first dedicated Ultra Ethical wealth manager offering an innovative suite of investment products. As a pioneer with specialist expertise in a dynamic new sector, we offer all Australians and attractive alternative in socially responsible investing.
…
3. Benefits of investing with Crescent Wealth Super
The Fund is designed to allow you to save and accumulate your superannuation based on Islamic investment principles.
5. How we invest your money
Under Ultra Ethical investing, certain social and moral considerations, which are in accordance with Islamic investment principles, are taken into account in determining the investment objectives of the underlying funds in which the Fund invests. For example, investment and assets which may give exposure to income from gambling, adult material, alcohol or weaponry is avoided. These principles are highly relevant to the acquisition of assets in the underlying funds.
95 The asset classes making up the Crescent Balanced Investment Option, as described in the PDS, are: Australian Shares, International Shares, Property and Cash and Fixed Income. The appellants say that none of the marketing material conveys any suggestion of an association with a private equity firm named Crescent Capital.
96 In these proceedings, the appellants, plainly enough, must demonstrate error on the part of the primary judge. In the principal proceeding, the respondents claimed damages under s 12GF of the ASIC Act (apart from claims under the ACL) for loss suffered by reason of contended contraventions of s 12DA and s 12DB of the ASIC Act. Although those provisions are well known, it should be noted that s 12DA contains a statutory prohibition upon a person, in trade or commerce, engaging in conduct, in relation to financial services, that is misleading or deceptive or likely to mislead or deceive. Section 12DB contains a statutory prohibition upon a person, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion, by any means, of the supply or use of financial services; making a false or misleading representation that services are of a particular standard, quality, value or grade; or making a false or misleading representation that services have sponsorship, approval, performance characteristics, uses or benefits; or making a false or misleading representation that the person making the representation has a sponsorship approval or affiliation.
97 The trial was confined to the question of whether the appellants had engaged in contravening conduct.
98 As already noted, the primary judge found contraventions by the first and second respondents by conduct consisting of use of "CRESCENT WEALTH", the names of Crescent Wealth's Funds, use of domain names and use of "Crescent" coupled with words such as "investments" and "funds": PJ at [71] and [89].
99 Declaration 1, explanatory of the conduct, is framed in terms of contraventions of s 12DA of the ASIC Act. Orders 3 and 4 are restraining injunctions which give remedial expression to the contraventions. Orders 5 and 7 are mandatory corrective orders. Order 6 restrains Mr Yassine from aiding the first and second appellants from engaging in any conduct which would not comply with Orders 3 and 4.
100 Crescent Wealth's conduct is directed to "the public at large" with a particular emphasis on retail investors of the Islamic faith: PJ at [21].
101 In Campomar v Nike International (2000) 202 CLR 45 ("Campomar"), the Court (all seven Justices: Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) observed that the question that arose in that case (as it does in this case) was whether there was a "sufficient nexus" between the conduct and the "contended misconceptions" (or contended deceptions) in the mind of others: Campomar, [98].
102 The appellants here contend that there is no nexus sufficient to support the contraventions or the relief granted against the appellants (and particularly the first and second appellants) by the primary judge.
103 The question cannot be considered "in the abstract": Campomar, [99]. Regard must be had to the particular circumstances of the case: Campomar, [99]. Whether the conduct amounts to a representation is a question of fact to be decided against the background of "all the surrounding circumstances": Campomar, [100]. Where, as in this case, the conduct consists of contended representations to the "public at large or to a section thereof", the issue of the "sufficiency of the nexus" between the conduct (or apprehended conduct) and the misleading, or likely misleading, of persons acquiring (purchasing) the service (or products) is to be approached at a "level of abstraction" (Campomar, [101]) not present in the case of an express untrue representation made to a specific identified individual: a direct linear representation.
104 The "level of abstraction" finds expression in the "entry" into the inquiry of the "ordinary" (Mason J, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 210 ("Puxu") or "reasonable" (Gibbs CJ, Puxu at 199) members of a cohort or class of prospective users of the service (Campomar, [102]) to which particular "characteristics" can properly be "objectively" attributed having regard to the "circumstances of the case" including all the surrounding circumstances: Campomar, [102], [99], [100].
105 Where the persons in question are members of a cohort or class to which the conduct in question was directed "in a general sense" (Campomar, [103]), it is necessary to "isolate", by some "criterion", a "representative member" of that cohort (Campomar, [103]) and the "inquiry" (as to the sufficiency of the nexus), is to be undertaken with respect to "this hypothetical individual" so as to determine "why the misconception has arisen" (or is likely to arise if no remedy is granted): Campomar, [103].
106 The "heavy burden" imposed by the statutory norm reflected in s 52 of the Trade Practices Act 1974 (Cth) (which is the statutory norm reflected in s 12DA of the ASIC Act and s 18 of the ACL) suggests that where the effect of the conduct on a cohort or class of persons is in issue, the statutory prohibition "must be" regarded as contemplating the effect of the conduct on "reasonable members of the class": Campomar, [103].
107 In the case of mass-marketed products for general use such as sportswear and perfumery products, the Court in assessing the "likely reactions" of ordinary or reasonable members of the class of prospective purchasers may well give little weight to "assumptions" by persons whose reactions are "extreme" or "fanciful": Campomar, [105]. These proceedings do not involve mass-marketed consumer products such as athletic footwear or perfumery. The proceedings do involve, however, financial products and services extensively marketed by Crescent Wealth by brochures, billboards, Facebook pages and webpages to persons seeking or likely to be seeking investment services especially in relation to prudent superannuation investments in respect of a number of asset classes.
108 The proper analysis required of the primary judge in this case involved isolating, by some criterion supported by the evidence in all the circumstances, a hypothetical representative member of the class to whom the conduct was (and is) directed and then testing why the contended misconceptions arose or were likely to arise by reason of the use of "Crescent Wealth", "Crescent", the domain names, the Fund names and the company titles.
109 In assessing the reactions or likely reactions of ordinary or reasonable members of the relevant class of persons, the Court would be likely to give little weight to assumptions by persons whose reactions were extreme or fanciful. Reasonable or ordinary members of the class would be likely to bring an inquiring mind to the assessment of the investment products and services of Crescent Wealth promoted to the class. The sufficiency of the nexus between conduct and the misleading (or deception) of the class, tested against the hypothetical reasonable or ordinary member, is not made good simply because the conduct causes such a person to be confused or caused to wonder about issues of connection, source or origin between the products of Crescent Wealth and those of Crescent Capital. The question for the Full Court is whether the primary judge applied the correct method or test (that is, whether error is demonstrated) and whether, in undertaking the assessment according to that test (if correctly identified) the primary judge reached a conclusion open on the evidence notwithstanding that minds might legitimately differ about the application of the correct test in all the circumstances of the case.
110 In Campomar, their Honours put it this way at [107]:
In [the relevant circumstances of the case], looking at the matter objectively, there was nothing capricious or unreasonable or unpredictable in [the primary judge's] conclusion that the [relevant conduct] was likely to mislead or deceive members of the public into thinking [erroneously that the relevant product was in some way promoted, distributed or sponsored by Nike International].
[emphasis added]
111 There are a number of difficulties with the contentions of the appellants.
112 First, having regard to the principles identified by the primary judge at [38] and [39] and the primary judge's observations at [63] to the effect that investors do not necessarily or practically restrict themselves to one class of investment, or to one offeror of investment opportunities (whether within an asset class or across asset classes), and the observations at [70] that the relevant consumer is not, in the circumstances, necessarily a sophisticated one, it seems clear enough that the primary judge fully appreciated the test to be applied and, in all the circumstances of the case, identified a hypothetical representative of a class of investors against which the sufficiency of the nexus was to be tested.
113 Second, Mr Yassine explains in his affidavit of 16 February 2015 and in his oral evidence that AON Hewitt (a wholesale investor) invested $1.5 million with Crescent Wealth (for management rather than a capital investment in any of the companies) shortly after Crescent Wealth commenced business and before Crescent Wealth Superannuation Fund was established. He explained that the investment was a matter of "sheer serendipity" (T, p 218, ln 16) arising out of the good relationship subsisting between Ms Sengupta for AON Hewitt and Mr Omran for Crescent Wealth. Mr Yassine gave evidence that the investment at February 2015 had a current value of $1.57 million: T, p 218, lns 4-10. Notwithstanding those circumstances, Mr Yassine accepted that Crescent Wealth "would welcome another investment now into Crescent Wealth's funds if it came along": T, p 218, lns 18-19. Moreover, Mr Yassine accepted that he would have welcomed such an investment "any time in between 2011 and now" (T, p 218, lns 21-22) and that, from the time of setting up Crescent Wealth's funds, he (and therefore Crescent Wealth) "[was] happy to receive investments from high net worth individuals into the funds as long as they [investors] agreed to invest in [the] Sharia compliant investments we offered": T, p 218, lns 24-31. Mr Yassine also accepted that it remained an aim of the Crescent Wealth Superannuation Fund to "target higher net worth clients, through superannuation" and Crescent Wealth aimed, "absolutely", to "target financial planners and professional groups": T, p 218, lns 37-41.
114 Third, AB, Tab 10.21, is a document which bears the title "Crescent Wealth Superannuation Fund Investment Committee - 12 November 2014". Page 7 of that document (p 246 of the AB) contains a page marked "Direct marketing". It sets out amended sales targets for 2014 and a series of bullet points related to "marketing efforts for the quarter". As to direct marketing, the document says this:
• Amended sales targets for 2014 of $65m+. Discussions still advancing with Investment Platforms and Financial Planner groups eg. AMP, Yellow Brick Road and AON
• Increase in Average member balance every quarter; currently at approximately $27,500 an increase from $23,000 the quarter before.
…
[emphasis added]
115 As to the marketing efforts for the quarter, the document says this:
• Marketing efforts have been targeting higher net worth clients. This has meant targeting financial planners and professional groups.
…
[emphasis added]
116 Apart from these matters, the marketing document identifies that Crescent Wealth is continuing to "leverage" its existing partnerships with community groups; engage in event sponsorships in tandem with Islamic groups; continue its digital media advertising through Facebook and Youtube; continue with "regular Mosque drops around Sydney"; and adopt targeted efforts to "cover Islamic schools in NSW and VOC via school visits".
117 As to the matters at [114] and [115] of these reasons, it seems clear enough that Crescent Wealth's marketing efforts have been targeting higher net worth clients, financial planners and professional groups and the likelihood is that some of the individuals within that group would be wholesale investors.
118 Fourth, Mr Yassine accepted that on 17 August 2015, Crescent Wealth issued a press release indicating that it has surpassed the $100 million benchmark in funds invested which represented a 245% growth in funds under management in the financial year 2015: T, p 220, lns 15-17; lns 28-31. As to the returns on investment, Mr Yassine accepted that since its February 2013 launch, the Crescent Wealth International Equity Fund had achieved a total return of 60.7% to 30 June 2015: T, p 221, lns 10-15.
119 Fifth, it follows from the circumstances at [112] to [118] (apart from [116]) of these reasons that the appellants' singular or silo point of differentiation between highly sophisticated wholesale investors seeking out high return/high risk private equity "alternative" investments (through Crescent Capital) on the one hand and unsophisticated retail investors seeking out low risk/low return investments in "traditional" asset classes on the other hand, in all the circumstances of the case, does not provide a "criterion" for isolating a "representative member" of the relevant cohort or class for the purpose of undertaking the "inquiry" as to the sufficiency of the nexus so as to determine whether and why the contended "misconception" has arisen: see [105] of these reasons.
120 This is precisely why the primary judge identified, as a relevant criterion, the circumstance that "investors do not necessarily restrict themselves to a single asset class" and that, in the circumstances of the case, "Crescent Wealth is diversifying within and across asset classes and expanding the amounts of funds under management": PJ at [69]. It also explains why the primary judge accepted the submissions of Crescent Capital that "the relevant consumer is not, in the circumstances, necessarily a sophisticated one": PJ at [70].
121 Sixth, the appellants recognise that investors in private equity are likely to do so as part of a diversification strategy to achieve balance in a portfolio of investments. In doing so, such investors familiar with Crescent Capital's reputation, as found, might well engage with Crescent Wealth in relation to the main or traditional asset classes in which it provides investment services and products and bring to that engagement consciousness of the names Crescent Capital and Crescent. Such investors are likely to balance a portfolio of investments by considering investments in funds targeting high net worth individuals; wholesale investors (such as AON Hewitt and high net worth individuals who would be regarded as wholesale investors); financial planners; those persons interested in returns through participation in funds invested in securities listed on International Securities Exchanges; securities listed on the Australian Securities Exchange; and those persons interested in participating in profits derived from diversified property investments.
122 Thus it can be seen that the strict differentiation critical to the appellants' case falls away.
123 Seventh, although the primary judge placed no particular emphasis on the issue of actual confusion, there was evidence before the primary judge of actual confusion.
124 Mr Yassine, in an email dated 1 October 2012 to Mr David Mortimer, the Chairperson of the Crescent Capital entities, said that "it would be great to meet the Crescent Team (your Crescent Team)" [emphasis added] and on 10 December 2012, Mr Yassine sent Mr Mortimer an email asking him whether he would be willing to join the Crescent Wealth Advisory Board. Mr Mortimer responded by saying that it would be better that he not do so as he and his colleagues felt that to do so would simply confuse people "with the names so close". Mr Peter Scrine, Crescent Capital's Business Development Director, gave evidence in an affidavit of 25 September 2014 that in 2012 Crescent Capital was in the early stages of identifying dental surgeries that might be acquired as part of a national dental care undertaking. He says that on 17 December 2012 he had a conversation with Mr Ian Donnelly, an employee of Collins Acquisitions (a company that facilitates the sale of dental and child-care businesses). Mr Scrine sought to arrange a meeting with Mr Donnelly to "potentially develop a deal flow from [Mr Donnelly's] firm". Mr Donnelly said: "Sure. Are you the Islamic equity fund?" Mr Scrine said that that was Crescent Wealth and that he was from Crescent Capital. Mr Mortimer also gave evidence that on or about 7 August 2013 at a fundraising dinner hosted by Deutsche Bank in Sydney, the Australian Treasurer, Mr Hockey, had a conversation with him in which Mr Hockey said that he had met someone from "Crescent last week" whose name was "something like Yassine" and Mr Mortimer responded that Mr Yassine was not "connected to us" and that he "runs another company with the same name". There are similar examples of conversations. More importantly, there is also an email addressed to employees of Crescent Capital from the "Unlisted Unit Trust Team" at BNP Paribas bank by which information is sought about one of Crescent Wealth's funds as well as information about Crescent Capital's funds. Plainly enough, the author of the email regarded Crescent Wealth's funds as part of the funds administered by Crescent Capital.
125 Having regard to all of these matters at [112] to [124] of these reasons, I am satisfied that the primary judge did not fall into error in framing the representative member of the class in the way her Honour did. I am also satisfied that although an investor in private equity funds would likely bring an inquiring mind to investments in other funds focused upon traditional asset classes, there is a real likelihood that such an investor, within the class of investors, would likely be misled by Crescent Wealth's use of the term "Crescent" and "Crescent Wealth", in the description of its funds and in its presentation of itself to those with whom it deals.
126 I am satisfied that the primary judge in applying the test, properly identified by her Honour, did not reach conclusions which could be described as capricious, unreasonable or unpredictable: see [110] of these reasons. I am satisfied that the primary judge did not otherwise fall into error. For these reasons, the appeal by the Crescent Wealth appellants ought to be dismissed.
127 As to the appeal by Crescent Capital in relation to Orders 3 and 4 (and related orders), I have had the benefit of reading the draft reasons for judgment of Edelman J and I agree with those reasons in support of the orders his Honour proposes.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.