International Assets Pty Ltd v Rubin - [2025] VSC 454

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2021 03184

INTERNATIONAL ASSETS PTY LTD (ACN 618 511 078) AS TRUSTEE FOR THE STAVROULA FAMILY TRUST and ANOTHER Plaintiffs

v

RICHARD RUBIN (and others according to the Schedule) Defendants

and

ANGELO BIVIANO AND OTHERS Third Parties
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JUDGE:

GARDE J

WHERE HELD:

Melbourne

DATES OF HEARING:

9, 12, 15, 16, 19-23, 26-27 May, 26 June 2025

DATE OF JUDGMENT:

25 July 2025

CASE MAY BE CITED AS:

International Assets Pty Ltd & Anor v Rubin & Ors

MEDIUM NEUTRAL CITATION:

[2025] VSC 454

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MISLEADING AND DECEPTIVE CONDUCT - Whether representations were made to the effect that payments made by the plaintiffs would be wholly or substantially used in product development – Whether representations made that the plaintiff would acquire part ownership of the entities that owned the physical and intellectual property relating to the products under development – Whether the defendants’ conduct was misleading and deceptive – Reliance – Causation – Whether deceit – Australian Consumer Law s 18 – Australian Securities and Investment Commission Act 2001 (Cth) s 12DA.
EVIDENCE – Whether recording of a telephone conversation should be admitted where one party to conversation unaware of recording Surveillance Devices Act 1999 (Vic) ss 6(1), 11(1); Evidence Act 2008 (Vic) s 38.
CONTRIBUTORY NEGLIGENCE – Whether the plaintiffs’ award should be reduced for contributory negligence – Competition and Consumer Act 2010 (Cth) s 137B - Australian Securities and Investment Commission Act 2001(Cth) ss 12GP, 12GR.
ACCESSORIAL LIABILITY – Relevant principles – Whether knowing involvement by accountant in misleading and deceptive conduct.
TRUSTS – Whether payments subject to trust of the character described in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 – Whether payments subject to a trust of the character described in Black v S Freedman & Co (1910) 12 CLR 105.
KNOWING ASSISTANCE – Whether second limb of the description in Barnes v Addy (1874) LR 9 Ch App 244 applies – Relevant principles.
ILLEGALITY – Failure to disclose bankruptcy – Whether bankrupt managed a corporation – Corporations Act 2001 (Cth) ss 206A, 206B(3).
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APPEARANCES:
Counsel Solicitors

For the Plaintiffs Mr J Evans KC with
Mr L Freckelton Moray + Agnew

For the First to Ninth Defendants (and First to Third Plaintiffs by third party notice) Mr R Moore Kalus Kelly Intelex

For the Tenth to Twelfth Defendants and defendants by third party notice Mr D Gration Macpherson Kelley
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Introduction................................................................................................................................... 1
Parties.............................................................................................................................................. 2
International Assets............................................................................................................. 2
Amosa.................................................................................................................................... 2
The Rubin entities................................................................................................................ 3
Angelo Biviano, Chambers & Partners, and Elldon....................................................... 5

Principal representations............................................................................................................. 6
Pleadings........................................................................................................................................ 7
Admissions..................................................................................................................................... 7
Admissions by Rubin parties............................................................................................. 7
Admissions by Biviano parties........................................................................................ 13

The Evidence..................................................................................................................................... 18
Mr Bertuna................................................................................................................................... 19
Introduction to Mr Rubin................................................................................................. 19
Donvale meeting................................................................................................................ 19
Subsequent discussions.................................................................................................... 21
Sandringham meeting....................................................................................................... 22
Conversation with Mr Biviano........................................................................................ 24

Payments............................................................................................................................ 24
Ms Alebakis.................................................................................................................................. 24
Meeting with Mr Rubin on 29 March 2017.................................................................... 25
Payment of $1.2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 454
Decision Date: 25 July 2025

CaseChat Overview and Summary

In the matter of International Assets Pty Ltd v Rubin, the dispute arose from the plaintiffs' investments into entities engaged in the development of certain products, which were allegedly used to fund the development of those products and to acquire part ownership in the entities. The case was heard by the Supreme Court of Victoria. The plaintiffs claimed that the defendants' conduct was misleading and deceptive, contrary to the Australian Consumer Law, and that the defendants were in breach of the Australian Securities and Investment Commission Act 2001. The plaintiffs sought damages, interest, and legal costs.

The court was required to determine several key legal issues. These included whether the defendants' conduct was misleading or deceptive, whether the plaintiffs' reliance on those representations was justified, and whether there was a causal link between the misleading or deceptive conduct and the plaintiffs' losses. The court also had to consider whether the recording of a telephone conversation should be admitted as evidence, in light of the relevant provisions of the Surveillance Devices Act 1999 and the Evidence Act 2008. Furthermore, the court needed to decide whether the plaintiffs' award should be reduced for contributory negligence, and whether the accountant had knowingly participated in the misleading and deceptive conduct. Finally, the court examined whether the payments made by the plaintiffs were subject to a trust of the character described in Barclays Bank Ltd v Quistclose Investments Ltd and Black v S Freedman & Co, and whether the second limb of the description in Barnes v Addy applied to the defendants' conduct.

The court found that the defendants' conduct was indeed misleading and deceptive, as they made representations to the plaintiffs that the payments would be used for product development and that the plaintiffs would acquire part ownership of the entities. The plaintiffs' reliance on these representations was justified, and the misleading or deceptive conduct was a cause of the plaintiffs' losses. The court held that the recording of the telephone conversation should be admitted as evidence, as the defendant who was unaware of the recording had not objected to its admission. The court also found that the plaintiffs' award should not be reduced for contributory negligence, and that the accountant had not knowingly participated in the misleading or deceptive conduct. The payments made by the plaintiffs were held to be subject to a trust of the character described in Barclays Bank Ltd v Quistclose Investments Ltd, but not in Black v S Freedman & Co. The second limb of the description in Barnes v Addy was held not to apply to the defendants' conduct.

The court ordered the defendants to pay damages to the plaintiffs, together with interest and costs. The defendants were also ordered to pay the plaintiffs' legal costs on an indemnity basis.

Orders