Commonwealth Financial Planning Ltd v Couper

Commonwealth Financial Planning Ltd (the appellant) appealed to the Court of Appeal of New South Wales against findings of fact made by the primary judge in proceedings brought by Mr Couper (the respondent). The dispute concerned financial advice provided by the appellant to the respondent regarding a life insurance policy. The respondent alleged that the appellant engaged in misleading and deceptive conduct by advising him to take out a new life insurance policy and cancel his existing one, without adequately disclosing the implications of the *Insurance Contracts Act 1984* (Cth), s 29(3), and failing to provide sufficient information for a proper comparison of policies.

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.