Count Financial wins case over negligent advice

According to court documents, Darren Hewitt alleged that in June 2007, a Count Financial-aligned adviser recommended he obtain a margin loan from CBA and use his cash savings to purchase more units in the Mariner Pipeline Income Trust.

Because of this, Mr Hewitt said he lost his life savings and the chance to purchase his own home.

But John Pollock, the now-retired ex-Count adviser, maintains he never provided such advice, as Mr Hewitt was never a client. The meeting the two shared was solely a “getting to know you” session, Mr Pollock had said.

County Court of Victoria judge Paul Cosgrave ultimately sided with the dealer group, citing inconsistencies in Mr Hewitt’s evidence.

The judge was also concerned with the amount of time that had passed before Mr Hewitt decided to launch the case.

“While I do not doubt his sincerity, I consider that Hewitt’s recollection of the events of June 2007 is defective and is largely a reconstruction after the event. I have grave reservations about the credit of Hewitt,” Judge Cosgrave said.

“First, it appears the first time that Hewitt made any complaint about the allegedly bad advice he received from Pollock was around June/July 2013. This was six years after the initial meeting between the two men.

“If Hewitt genuinely believed (as he asserted) that Pollock, by reason of his negligent advice, was responsible for the loss of Hewitt’s life savings and was the person to blame for the destruction of his ambition to purchase his own home, I would have expected Hewitt to make a complaint far sooner.”

On the other hand, the judge said he found Mr Pollock was “quite self-assured and confident” when giving evidence, despite some concerns with his statements.

“Not all aspects of Pollock’s evidence were entirely convincing. For example, if Hewitt were not a client, why did Pollock bother exchanging emails with him to the extent that he did in 2007 after the initial meeting?” Judge Cosgrave said.

“Why did Pollock refer in the email to Hewitt dated 10 July 2007 to providing ‘further advice or information’ when he denied having provided any advice to Hewitt?

“In each case Pollock offered an explanation. Having seen Pollock in court and having regard to the whole of his evidence, on balance, I accept his explanations.”

The case was dismissed as a result of Mr Hewitt’s inability to prove his case, Judge Cosgrave said. A hearing is set to take place in relation to costs.