Watch out how you advertise, FMA says after Du Val ad case appeal dismissed

The regulator welcomed a ruling upholding the direction order against property development and investment company Du Val. Photo / George Novak

The Financial Markets Authority has welcomed a decision to dismiss property development and investment company Du Val's appeal in an advertising dispute.

The High Court case related to an FMA order in 2021 directing Du Val to remove advertising materials likely to mislead or deceive investors.

The authority considered the ads contravened fair dealing provisions in the Financial Markets Conduct Act.

The FMA said the statements created the impression investing in financial products connected to property development was low risk.

"In fact, property development, including associated finance, is inherently risky," the FMA said today.

The statements also claimed there were no fees, despite Du Val retaining any profit on projects above the return to investors.

Du Val's offers used a wholesale investor exclusion, the FMA added.

In its appeal of the direction order, Du Val said the FMA failed to correctly identify the relevant class of consumers.

The company also said wholesale investors were inherently more sophisticated than non-wholesale investors and were capable of evaluating the merits of an offer.

Du Val also said the FMA incorrectly determined the company's right to retain any profits was a performance-based fee.

Justice Ian Gault agreed with the regulator's argument that the law intended to protect all investors, and that varying degrees of sophistication and experience existed among wholesale investors.

That meant not all investors were inherently sophisticated, Justice Gault added.

Paul Gregory, FMA investment management director, said the regulator welcomed the new judgment.

He said the judgment recognised that fair dealing provisions of the law were intended to protect all investors from misleading advertising.

Gregory added: "Wholesale offerors should pay close attention to this case and take care how they market and advertise to prospective investors."