NEUBERT & NEUBERT AND ORS - [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

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

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).
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.
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…

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

AGLC: NEUBERT & NEUBERT AND ORS [2017] FamCA 903
Case: [2017] FamCA 903
Decision Date: 9 November 2017

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