Alexander v Perpetual Trustees Wa Ltd
[2004] HCA 7(2004) 78 ALJR 411
(2004) 204 ALR 417
(2004) 216 CLR 109
(Judgment by: McHugh J)
Alexander
vPerpetual Trustees Wa Ltd
Judges:
Gleeson CJ
McHugh JGummow J
Kirby J
Hayne J
Callinan J
Legislative References:
Civil Liability (Contribution) Act 1978 (UK) - The Act
Trustee Companies Act 1987 (WA) - The Act
Trustee Companies Act 1964 (NSW) - The Act
Fair Trading Act 1985 (Vic) - The Act
Wrongs (Contribution) Act 1985 (Vic) - The Act
Chancery Procedure Act 1852 (UK) - The Act
Fair Trading Act 1985 (Vic) - s 11
Wrongs Act 1958 (Vic) - s 23B; s 23B(1); Pt IV
Law Reform (Married Women and Tortfeasors) Act 1935 (UK) - The Act
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - s 5
Trade Practices Act 1974 (Cth) - s 87(1A)
Judgment date: 12 February 2004
Judgment by:
McHugh J
[67] For the reasons given by Callinan J, the appellants breached s 11 of the Fair Trading Act 1985 (Vic) and their breach was a cause of the loss suffered by the plaintiffs in the action. The appellants were therefore liable to the plaintiffs to the extent that the appellants caused the loss of the funds invested in EC Consolidated Capital Ltd ("EC Consolidated") on behalf of the plaintiffs. The respondents too have been held liable to the plaintiffs for losing the funds invested in EC Consolidated, such liability having been found to be established by the trial judge. Accordingly, within the meaning of s 23B(1) of the Wrongs Act 1958 (Vic) ("the Act"), both the appellants and the respondents were "liable in respect of the same damage" - the loss of the funds beneficially owned by the plaintiffs. Because that is so, s 23B of the Act entitles the appellants to contribution from the respondents in respect of the damage for which the appellants are responsible. For the reasons given by his Honour, I also agree that the respondents cannot rely on the various "defences" upon which they seek to rely.
[68] Accordingly, the appeal must be allowed. I agree with the orders proposed by Callinan J.