KESSLER & KESSLER

The parties to this proceeding were Kessler & Kessler (the applicant) and Kessler & Kessler (the respondent). The applicant sought to have a deed of settlement, entered into between the parties on 15 March 2019, set aside. The dispute concerned allegations of misleading and deceptive conduct and unconscionable conduct in relation to the negotiation and execution of the settlement deed. The matter came before Hannam J in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the applicant had been induced to enter into the settlement deed by misleading or deceptive conduct, or by unconscionable conduct, on the part of the respondent. The applicant also sought to argue that the deed was void or voidable due to these alleged breaches.

Hannam J considered the evidence presented by both parties regarding the circumstances surrounding the negotiation of the settlement deed. The court analysed the conduct of the respondent in light of the relevant provisions of the Australian Consumer Law and the equitable principles governing unconscionable conduct. The judge carefully examined the communications between the parties and the information that was or was not disclosed during the settlement process. The court applied established legal principles concerning the elements required to establish misleading or deceptive conduct and unconscionable dealing, including the need for a special disadvantage and exploitation of that disadvantage.

The court ultimately found that the applicant had not established the necessary elements for either misleading or deceptive conduct or unconscionable conduct. Accordingly, Hannam J dismissed the application to set aside the deed of settlement.