Court of Appeal
New South Wales
Case Title: Commonwealth Financial Planning Ltd v Couper Medium Neutral Citation: [2013] NSWCA 444 Hearing Date(s): 21/06/2013 Decision Date: 16 December 2013 Before: Beazley P;
McColl JA;
Leeming JADecision: Appeal dismissed, with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - challenge to credit-based findings of fact - no adequate reconciliation of all evidence on point - internally inconsistent findings - appellate interference warranted - no retrial required as judgment able to be independently supported
MISLEADING AND DECEPTIVE CONDUCT - life insurance policy - written advice to take out new policy and cancel existing policy - failure to advise of effect of Insurance Contracts Review Act 1984 (Cth), s 29(3) - insufficient information at time of advice for proper comparison - inability to recommend competitors' products - breach of Corporations Act 2001 (Cth), s 1041H and Australian Securities and Investments Commission Act 2001 (Cth), s 12DALegislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Liability Act 2002
Corporations Act 2001 (Cth)
Insurance Contracts Act 1984 (Cth)
Uniform Civil Procedure Rules 2005Cases Cited: Biogen Inc v Medeva plc [1997] RPC 1
Fox v Percy [2003] HCA 22; 214 CLR 118
Mason v Demasi [2009] NSWCA 227
Perre v Apand [1999] HCA 36; 198 CLR 180
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277Texts Cited: ASIC Regulatory Guide 175: Licensing: Financial product advisers - Conduct and disclosure (October 2013)
Report of the Parliamentary Joint Committee on Corporations and Financial Services, Inquiry into Financial Products and Services in Australia (November 2009)Category: Principal judgment Parties: Commonwealth Financial Planning Ltd (appellant)
Teghan Elizabeth Couper as executor of the estate of Noel Stevens (respondent)Representation - Counsel: Counsel:
M A Jones SC (appellant)
D Campbell SC; Mr S Longhurst (respondent)- Solicitors: Solicitors:
Henry Davis York (appellant)
RMB Lawyers (respondent)File Number(s): 2012/237522 Decision Under Appeal - Court / Tribunal: District Court - Before: Levy SC DCJ - Date of Decision: 03 July 2012 - Citation: [2012] NSWDC 94 - Court File Number(s): 2012/132876
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Stevens had a life insurance policy with Westpac Life. An authorised representative of the appellant CFP (a subsidiary of the Commonwealth Bank of Australia) persuaded him to take out cover with another insurer, CommInsure, and cancel his existing policy. Mr Stevens' true medical history was not disclosed to CommInsure. When Mr Stevens was diagnosed with pancreatic cancer, CommInsure avoided the policy for non-disclosure pursuant to s 29(3) of…
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- AGLC
- Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444
- Case
- [2013] NSWCA 444
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge's findings of fact, particularly those relating to the appellant's creditworthiness, were adequately supported by the evidence. Specifically, the court considered whether the primary judge's findings were internally inconsistent and whether these inconsistencies warranted appellate interference. The court also had to assess whether the appellant's conduct constituted misleading or deceptive conduct in contravention of s 1041H of the *Corporations Act 2001* (Cth) and s 12DA of the *Australian Securities and Investments Commission Act 2001* (Cth).
The Court of Appeal found that the primary judge's findings of fact were not adequately reconciled with all the evidence and contained internal inconsistencies, justifying appellate intervention. However, the court determined that the primary judge's ultimate conclusion that the appellant had engaged in misleading and deceptive conduct was independently supportable by the evidence, notwithstanding the identified flaws in the factual findings. Consequently, the court concluded that a retrial was not necessary.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
Appeal dismissed, with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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