Wire & Co is a Perth based investment bank that offers private banking and wealth management services for high-net-worth individuals and their families.Mr and Mrs O'Hara (the Claimants), whose joint net worth was then in excess of $25 million (AUD), began their relationship with Wire & Co in 2011. Their 'relationship manager' from 2011 to 2018 was a MrKevin Stone, after which a MrRay Eugene took over.

Although Mr O'Hara was an astute and successful businessman, neither he nor his wife were experienced investors. So, they repeatedly made it clear to the bank that they were willing to accept some risk - but not too much - provided that they were properly informed beforehand about how much risk they were taking on.

In the written contract of engagement between the Claimants and Wire & Co, the bank expressly undertook to advise the Claimants in their personal capacity, including working with them to understand their "circumstances, objectives and requirements" and to formulate for them "a balanced and appropriate investment strategy".

In 2017 and 2018 the Claimants invested over $8 million (AUD), on the bank's advice, in three products from the bank's new line of "Nexus" hedge fund products (the Nexus Investments). The bank classified and described these products as "wealth generation products" (its most risky investment category).

The result of taking on the Nexus Investments was a to produce a significant shifttowards higher risk investments in the Claimants' overall investment portfolio.

The Claimants subsequently complained to the bank about the Nexus Investments, claiming that they were not suited to their needs because (i) there was no capital protection; and (ii) the investments caused the Claimants to expose an unjustifiably high proportion of their wealth to the risk of loss.

They also complained that in order to persuade the Claimants to take onthe Nexus Investments Mr Stone had significantly downplayed the substantial increase in their investment risk that was associated with investing in that type of investment, a type of investment which they claimed they would otherwise not have been willing to take on, and they stated that they suspected that Mr Stone had done this in order to earn for himself a large (and undisclosed) commission payment.

In early 2020, in an attempt to add some more 'balance' to their portfolio the Claimants, who were now acting on the advice of Mr Eugene, invested a further $10 million (AUD)in two additional products that Mr Eugene recommended to them. These products were called "Autopilot" and "Navigator" (the BSI Investments).

Unlike the Nexus Investments, the BSI Investments were classified by the bank as "wealth preservation products" (the bank's least risky investment category).

The Claimants subsequently decided that they were unhappy with the BSI Investments claiming that they were also not suited to their needs, because both products were offered by the same institution (BSI Investments Ltd). The Claimants argued that Mr Eugene should have advised them against concentrating so much of their money in one institution, since their $10 million (AUD) investment meant that nearly half of their entire capital would be at risk if BSI Investments should become insolvent.

In essence the Claimants were alleging that both the Nexus Investments and the BSI Investments were unsuitable for their needs because the former was 'too risky' and the latter 'too concentrated' and that, in recommending that they invest in such unsatisfactory products, the bank had been negligent and had, as a result, breached both its contractual obligations to the Claimants and the tortious 'duty of care' that it owed them.

The Claimants suffered significant losses in relation to both the Nexus Investments and the BSI Investments when the market dramatically declined in value, following the onset of the worldwide COVID-19 pandemic.

In an attempt to recover some of these losses the Claimants issued legal proceedings against Wire & Co in late 2021, alleging both breach of contract and actionable (tortious) negligence on the part of the bank, and seeking an award of damages to compensate them for the losses they had incurred as a result of following the bank's advice in relation to both the Nexus Investments and the BSI Investments.

In late 2020, when the Claimants had first complained to Wire & Co about the losses they had suffered and had informed the bank that the believed that both the Nexus Investments and the BSI Investments had been 'mis-sold' to them, the bank had initially rejected all their complaints andexplained in some detail why it considered that the products had not been mis-sold. Nevertheless, recognising the value to the bank of the Claimants' business, the bank orally agreed 'purely as a gesture of goodwill' to pay to the claimants the sum of $250,000 in consideration for the Claimants agreeing not to sue the bank in relation to any of these investments.

This agreement was never put into writing and although both parties acknowledged that the compensation amount that was eventually agreed upon was $250,000 there was a disagreement between them as to whether this agreed amount was to be paid in Australian dollars or in (the considerably more valuable) US dollars. This disagreement has never been resolved.

In early 2021 the bank credited the sum of $250,000 (AUD) to the Claimants account. It then wrote to the Claimants to advise them of that fact but, at the same time, to make it clear that this payment was being made by the bank 'without any admission of liability' and that, in the bank's view their purely oral agreement with Claimants, about the terms of which there was a significant and unresolved dispute, and which the bank said was never intended to be contractually binding, was not, in fact or in law, legally binding in any way.

Q: Was the settlement agreement between the Claimants and Wire & Co a legally binding contract?