Legal Research
Cases
Julian Emmanuel Levy v Peter Bablis

Julian Emmanuel Levy v Peter Bablis

Case [2011] NSWSC 461 19 May 2011

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461
Hearing dates: 27, 28, 29, 30, 31 July 2009, 9, 10, 11, 14, 15, 16, 17, 18 December 2009, 27, 28, 30 April 2010
Decision date: 19 May 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Judgment for the first defendant against the plaintiff. Judgment for the plaintiff against the second defendant the sum of $2 million plus interest to be calculated. Parties to bring in short minutes of order.

Catchwords: CONTRACT - alleged misleading and deceptive conduct - plaintiff claims to have invested $1 million with the first and second defendants - the second defendant admits and the first defendant denies the investment - HELD - plaintiff only invested with the second defendant by way of loan, not the first defendant - EQUITY - equitable remedies - alleged breach of fiduciary duty - first defendant said to have misused his fiduciary position in relation to the making of the plaintiff's $1 million investment - claim for equitable compensation - HELD first defendant is not the plaintiff's fiduciary - no equitable compensation awarded - MISLEADING AND DECEPTIVE CONDUCT - plaintiff alleges misleading and deceptive conduct and negligent misstatement against first defendant in relation to $1 million investment - HELD - no misleading or deceptive conduct - no conduct in trade or commerce - no duty of care.
Legislation Cited: Australian Securities and Investments
Chiropractors Act (NSW) 2001
Commission Act (Cth) 2001, s 12BB
Corporations Act (Cth) 2001, s 769C
Fair Trading Act 1987 (Cth), s 12BB
Uniform Civil Procedure Rules (NSW) 2005, r 12.1
Cases Cited: Barnes v Addy (1874) LR9ChApp 244
Brunninghausen v Glavanics (1999) 46 NSWLR 538
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Levy v Bablis & Anor [2009] NSWSC 768
Levy v Bablis & Anor [2009] NSWSC 890
Levy v Bablis & United Producers & Associates Pty Ltd [2009] NSWSC 740
Pilmer v The Duke Group Ltd (in liq) (2001) 207 CLR 165
The Duke Group Ltd (in liq) v Pilmer (1999) 73 SASR 64
Texts Cited: T.G. Youdan, Equity, Fiduciaries and Trusts (1989) Carswell, Toronto at 34-5
Category: Principal judgment
Parties: Plaintiff- Julian Emmanuel Levy
First Defendant- Peter Bablis
Second Defendant- United Producers & Associates Pty Limited
Representation: Counsel
Plaintiff- S.J. Stanton; M.B. Holmes
First Defendant- J. Simpkins SC; M. Condon; Ms P. McEniery
Second Defendant- Mr A.W.Street SC; Ms D.Hawkins
Solicitors
Plaintiff- Andrew Bruce Thorpe, McLachlan Thorpe Partners
First Defendant-Michael Raine, Minter Ellison Lawyers
Second Defendant- P.J. Livers, Slattery Thompson Solicitors

File Number(s): 2006/260173

Judgment

Introduction

Mr Peter Bablis practises as a chiropractor in Sydney's Central Business District ("CBD") and in Double Bay. From September 1999 until August 2006 Mr Julian Levy was one of his patients. Mr Bablis offered special therapies to patients such as Mr Levy, including Neuro Emotional Technique ("NET"), chiropractic adjustments, acupuncture and kinesiology.…

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.

Continue reading Julian Emmanuel Levy v Peter Bablis

Details

AGLC: Julian Emmanuel Levy v Peter Bablis [2011] NSWSC 461
Case: [2011] NSWSC 461
Decision Date: 19 May 2011

CaseChat Overview and Summary

The case of Julian Emmanuel Levy v Peter Bablis involved a dispute over an alleged investment of $1 million made by the plaintiff, Julian Emmanuel Levy, with the defendants, Peter Bablis and another individual. The second defendant admitted to receiving the investment from the plaintiff, while the first defendant, Peter Bablis, denied it. The plaintiff sought to enforce the alleged investment, claiming that Bablis had engaged in misleading and deceptive conduct and breached fiduciary duties in relation to the investment. The plaintiff also claimed that Bablis had made a negligent misstatement concerning the investment. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the plaintiff had indeed invested $1 million with Bablis, whether Bablis was the plaintiff's fiduciary, and if Bablis had engaged in misleading and deceptive conduct and made a negligent misstatement. The court had to determine if Bablis was under a duty of care to the plaintiff and whether there was any misleading or deceptive conduct in trade or commerce. The court also needed to decide if any equitable remedies were available for the plaintiff.

In its decision, the court found that the plaintiff had only invested $1 million with the second defendant, not Bablis, and that the investment was made by way of a loan, not as an investment. The court held that Bablis was not the plaintiff's fiduciary and, therefore, no breach of fiduciary duty or equitable compensation was awarded. Furthermore, the court found that Bablis had not engaged in any misleading or deceptive conduct or made a negligent misstatement as there was no conduct in trade or commerce and no duty of care was owed to the plaintiff. The court held that the plaintiff's claims were without merit.

As a result of the court's decision, the plaintiff's claims against Bablis were dismissed, and no orders were made in favour of the plaintiff. The court found that the plaintiff had not established any of the elements of his claims against Bablis.

Orders