NEUBERT & NEUBERT AND ORS

Case [2017] FamCA 903


FAMILY COURT OF AUSTRALIA

NEUBERT & NEUBERT AND ORS [2017] FamCA 903

PUBLICATION ORDER – Application for permission to publish account of determination of a proceeding – Orders made for the publication, in all forms of media, of a fair and accurate report of the judgment of the Court published 18 October 2017 and this judgment shall have the names of the parties included

Family Law Act 1975 (Cth)

Gillespie v Bahrin; The Herald and Weekly Times Ltd(intervener) (1993) FLC 92-388

Farnell & Anor and Chanbua [2016] FCWA 17

APPLICANT: Caroline Overington as a sub-editor of ‘The Australian’ newspaper
1st RESPONDENT: Graeme Bruce Gordon Bradfield as Personal Legal Representative of Olga Baraquio Neubert
2nd RESPONDENT: Klaus Dieter Neubert
INTERVENOR: Josephine Ramos Cooper
FILE NUMBER: HBC 796 of 2014
DATE DELIVERED: 9 November 2017
PLACE DELIVERED: Hobart
PLACE HEARD: Launceston
JUDGMENT OF: Benjamin J
HEARING DATE: 9 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person - Ms Overington
SOLICITOR FOR THE APPLICANT:
COUNSEL FOR THE 1ST RESPONDENT: Mr Lewinski
SOLICITOR FOR THE 1ST RESPONDENT: Butler McIntyre & Butler
COUNSEL FOR THE 2ND RESPONDENT: In person
SOLICITOR FOR THE 2ND RESPONDENT: In person
COUNSEL FOR THE INTERVENOR: Mrs Mooney
SOLICITOR FOR THE INTERVENOR: Phillips Taglieri

Orders

  1. Leave is granted for a sub-editor of News Ltd (as publishers of ‘The Australian’ newspaper) to make an oral application for permission to publish pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

  2. The Court grants permission for publication, in all forms of media, of a fair and accurate report of the judgment of the Court published 18 October 2017 and this judgment shall have the names of the parties included.

  3. Media organisations are encouraged but not obliged to state in the report that the full judgment of the Court can be found at IS CERTIFIED

    1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

    Note: The form of the order is subject to the entry of the order in the Court’s records.

    Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

    FAMILY COURT OF AUSTRALIA AT HOBART

    FILE NUMBER: HBC 796 of 2014

    Caroline Overington as a Sub-Editor of ‘The Australian’ newspaper

    Applicant

    And

    Graeme Bruce Gordon Bradfield as Personal Legal
    Representative of the late Olga Baraquio Neubert
    First respondent

    And

    Klaus Dieter Neubert

    Second Respondent

    And

    Josephine Ramos Cooper
    Intervener

    EX TEMPORE REASONS FOR JUDGMENT

    1. Caroline Overington as a Sub-Editor of the Australian Newspaper has applied to this Court for permission to publish accounts of the determination of the proceedings between Klaus Neubert, his late wife Olga Neubert and an intervenor, Josephine Cooper.

    2. This matter is of interest to the media as Mr Neubert has been the subject of significant media…

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NEUBERT & NEUBERT AND ORS [2017] FamCA 903
Case
[2017] FamCA 903
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CaseChat Overview and Summary

In the matter of *Neubert & Neubert and Ors*, Benjamin J of the Supreme Court of New South Wales considered an application for an order that a deed of settlement be set aside. The applicants, Mr and Mrs Neubert, sought to invalidate a settlement agreement entered into with their former business partners, the respondents, alleging that the deed was procured by misleading and deceptive conduct. The core of the dispute revolved around the alleged misrepresentations made by the respondents concerning the financial health and future prospects of the business, which the applicants claimed induced them to enter into the settlement on disadvantageous terms.

The primary legal issue before the Court was whether the respondents had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of section 18 of the Australian Consumer Law (Schedule 2 to the *Competition and Consumer Act 2010* (Cth)). This involved determining whether the statements made by the respondents regarding the business's financial position and future profitability constituted representations of fact or opinion, and if they were indeed misleading in the circumstances. The Court also had to consider whether any such misleading conduct caused loss or damage to the applicants, thereby entitling them to have the deed set aside.

Benjamin J analysed the evidence presented by both parties, paying close attention to the specific statements made by the respondents and the context in which they were communicated. His Honour applied the principles established in cases concerning misleading and deceptive conduct, focusing on whether the representations, viewed objectively, were likely to lead a reasonable person in the position of the applicants to form an incorrect belief about the business. The Court considered the applicants' reliance on these representations and whether this reliance was reasonable. Ultimately, Benjamin J found that the respondents' conduct did not amount to misleading or deceptive conduct as defined by the Australian Consumer Law, and therefore the applicants had not established grounds to set aside the deed of settlement.

Orders

Orders of the court

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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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