Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444 Hearing dates: 21/06/2013 Decision date: 16 December 2013 Before: Beazley P; McColl JA; Leeming JA Decision: Appeal dismissed, with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - challenge to credit-based findings of fact - no adequate reconciliation of all evidence on point - internally inconsistent findings - appellate interference warranted - no retrial required as judgment able to be independently supported

MISLEADING AND DECEPTIVE CONDUCT - life insurance policy - written advice to take out new policy and cancel existing policy - failure to advise of effect of Insurance Contracts Review Act 1984 (Cth), s 29(3) - insufficient information at time of advice for proper comparison - inability to recommend competitors' products - breach of Corporations Act 2001 (Cth), s 1041H and Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Civil Liability Act 2002 Corporations Act 2001 (Cth) Insurance Contracts Act 1984 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Biogen Inc v Medeva plc [1997] RPC 1 Fox v Percy [2003] HCA 22; 214 CLR 118 Mason v Demasi [2009] NSWCA 227 Perre v Apand [1999] HCA 36; 198 CLR 180 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 Texts Cited: ASIC Regulatory Guide 175: Licensing: Financial product advisers - Conduct and disclosure (October 2013) Report of the Parliamentary Joint Committee on Corporations and Financial Services, Inquiry into Financial Products and Services in Australia (November 2009) Category: Principal judgment Parties: Commonwealth Financial Planning Ltd (appellant) Teghan Elizabeth Couper as executor of the estate of Noel Stevens (respondent) Representation: Counsel: M A Jones SC (appellant) D Campbell SC; Mr S Longhurst (respondent) Solicitors: Henry Davis York (appellant) RMB Lawyers (respondent) File Number(s): 2012/237522 Decision under appeal Jurisdiction: 9101 Citation: [2012] NSWDC 94 Date of Decision: 2012-07-03 00:00:00 Before: Levy SC DCJ File Number(s): 2012/132876