Delco Australia Pty. Ltd. (“Delco”) brought proceedings in the Supreme Court of South Australia against Darlington Futures Ltd. (“Darlington”) seeking damages in respect of losses incurred as a result of commodity futures trading engaged in by Darlington on Delco’s behalf. The agreement between the parties contained the following relevant clauses:

6. The Client [Delco] acknowledges that a guarantee or assurance of profit is impossible in commodity trading and accordingly acknowledges that it has not received any such guarantee or assurance from the Agent [Darlington] or any of its representatives. The Client has not entered into this Agreement and will not be transacting any orders in reliance upon any such guarantee or assurance. The Client further acknowledges that the Agent will not be responsible for any loss should the Client follow any of the Agent’s trading recommendations or suggestions, nor for any loss, in the case of Discretionary Accounts, arising from trading by the Agent on behalf of the Client. The Client finally acknowledges that the Agent will not be responsible for any loss arising in any way out of the trading activity undertaken on behalf of the Client whether pursuant to this Agreement or not, and that the Agent shall not be liable to account to the Client for any profit made by the Agent in any of the circumstances set out in clause 9 whether or not such circumstances result in a loss to the Client.

7.…