Alexander v Perpetual Trustees Wa Ltd

[2004] HCA 7
(2004) 78 ALJR 411
(2004) 204 ALR 417
(2004) 216 CLR 109

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(Judgment by: Callinan J)

Alexander
vPerpetual Trustees Wa Ltd

Court:

Judges: Gleeson CJ
McHugh J
Gummow 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)

Hearing date:
Judgment date: 12 February 2004

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Judgment by:
Callinan J

[121] The question which this appeal raises is whether the appellant solicitors who were held to have acted in breach of trust and the Fair Trading Act 1985 (Vic), and negligently, in relation to funds of which the respondent trustee companies were trustees, and who had themselves acted in breach of trust, were entitled to recover contribution from the latter pursuant to s 23B of the Wrongs Act 1958 (Vic).

The facts

[122] In late 1997, 40 plaintiffs sued five defendants in the Supreme Court of New South Wales. The plaintiffs were the beneficial owners of funds which were held on their behalf by the respondents. Some of the plaintiffs were themselves trustees for others. Each plaintiff claimed an amount of money that he or she had lost by its being invested, together with other sums of money held on behalf of others, between 1993 and 1995, in preference shares in EC Consolidated Capital Ltd ("ECCC"), a company which went into liquidation on 15 July 1997.

[123] ECCC had invited members of the public to subscribe for redeemable "A" class preference shares in its capital. No smaller sum than $500,000 could be invested. The business of ECCC was the management of investments in the international money markets and in commodity contracts.

[124] ECCC stated in its offer documents that its obligations to redeem were supported by the provision of a "Deposit Certificate" issued by a "Prime Bank", in this case, Dresdner Bank AG, or a wholly owned subsidiary of it. The Deposit Certificate was to be a bearer certificate of deposit, guarantee, or a letter of credit drawn against the Prime Bank and lodged with a "Paying Agent". The Paying Agent was to be National Registries Pty Ltd ("National Registries"). The purpose of these arrangements was to secure the investors' capital investment.

[125] The respondents ("the Perpetual Companies") were trustees of two managed superannuation funds that were directed by several of their beneficiaries to invest their funds in ECCC. The Perpetual Companies were the third and fourth defendants at first instance and are the respondents to the appeal in this Court.

[126] The appellants acted as solicitors for ECCC. They drafted the agreements that set out the basis on which the funds would be released to ECCC. One such agreement was the "Subscription Agreement" which prescribed the obligations to which I have referred, to obtain Deposit Certificates.

[127] The appellants also acted as agents for the Perpetual Companies on completion of each settlement. This dual relationship inevitably gave rise to the possibility of a conflict of interest. They held the subscriptions paid by investors in their trust account. The money was to be released to ECCC in accordance with the Subscription Agreement only, that is, relevantly, when Deposit Certificates of the kind proposed in the offer documents became available.

[128] The appellants neither received nor sighted Deposit Certificates, yet they released the funds to ECCC. ECCC's failure to provide a conforming Deposit Certificate was a breach by ECCC of the Subscription Agreement. The appellants did not notify the Perpetual Companies of this fact. To the contrary, they wrote to National Registries, the Paying Agent, after each settlement, enclosing a document that they misdescribed as a Deposit Certificate, for safe custody.

[129] The lack of conforming Deposit Certificates led to the loss of the investors' funds because, on ECCC's insolvency, the investors had no recourse to the Prime Bank or otherwise.

Trial at first instance

[130] All except two of the plaintiffs sought and received financial advice from Feldworth Financial Services Pty Ltd ("Feldworth"). The advice was provided by the managing director of Feldworth, Mr Hans Felden. Feldworth and Mr Felden were the first and second defendants in the proceedings at first instance. Feldworth and Mr Felden did not defend the case brought against them, and the trial judge, Rolfe J, gave judgment against them. Thereafter their involvement in these proceedings ceased.

[131] The plaintiffs succeeded against the Perpetual Companies also. Rolfe J concluded that they were guilty of gross dereliction of duty as trustees. In particular, his Honour held that the appointment of the appellants as their agent without regard to the latter's conflict of interest fell short of the standard of conduct to be expected of a reasonable and prudent trustee. His Honour found that the breach was compounded by the failure of the respondents to make any enquiries of the solicitors or National Registries whether the Deposit Certificates had been received.

[132] The fifth defendant was Flexiplan Australia Ltd ("Flexiplan") which in 1993 replaced one of the Perpetual Companies as the trustee of one of the superannuation funds. The plaintiffs alleged that Flexiplan had acted in breach of its duty as a trustee by failing to obtain written confirmation that the Deposit Certificates had been obtained and were being held by National Registries. Rolfe J was of the view that Flexiplan's position on becoming trustee was different from that of the Perpetual Companies. It was not involved in any transaction in which money was to be expended. That had already happened. The only asset of the trust was the block of ECCC shares that had already been acquired. In the result, his Honour held that the plaintiffs had not established any relevant breach of duty by Flexiplan. No issue was taken in relation to that finding. Flexiplan was not a party to an appeal to the Court of Appeal, and is not a party to the appeal in this Court.

[133] The plaintiffs did not join the appellants as defendants at first instance. The respondents, the Perpetual Companies, cross-claimed against them. Rolfe J found that the appellants had acted negligently, and were derelict in their duty as agent for the respondents. His Honour also found that the appellants had acted in breach of s 11 of the Fair Trading Act on the basis that they had wrongly conveyed the impression, in letters to the respondents, that conforming Deposit Certificates had been obtained.

[134] At the trial the appellants had conceded liability for breach of trust and negligence, but had sought to escape liability by relying on an exemption clause contained in the Subscription Agreement.

[135] Rolfe J concluded that the exemption clause was intended to relieve the solicitors from liability in carrying out their obligations under the Subscription Agreement only: the liability asserted against the appellants in this case did not arise under it. Rather, it arose in the context of their relationship of agency with the respondents. His Honour therefore gave judgment in favour of the respondents against the appellants.

[136] The appellants had further submitted at the trial that even if they were guilty of any of the breaches alleged, no damage flowed from them because the chain of causation had been broken by the actions of the respondents in dealing with the Prime Bank. His Honour was nonetheless satisfied that it was the appellants' breaches that led to the failure to obtain conforming Deposit Certificates and that, but for the breaches, the loss would not have been sustained.

[137] Rolfe J also held that in the circumstances contribution was not available. The plaintiffs were entitled to recover from the respondents, and the respondents were entitled to recover from the appellants: their respective liabilities arose from different breaches and there was no co-ordinate liability. If it were otherwise, and he was bound to apportion responsibility, he would, his Honour said, have attributed liability of 60% to the appellants and 40% to the respondents.

[138] His Honour's disposition of the proceedings between the appellants and the respondents followed detailed argument by the parties which raised and developed the points which his Honour discussed. It should be kept in mind that the action was brought in the commercial division of the Court in which statements and arguments tend sometimes to take the place of detailed pleading, and in practice provide the basis for the joinder of issues. Although there were extensive pleadings here, it is plain that there were also departures from, and additions to them in argument. I am satisfied that in all relevant and practical senses, the issues argued in the appeals were sufficiently raised at the trial.

Appeal to the New South Wales Court of Appeal

[139] The appellants appealed to the Court of Appeal of New South Wales (Stein JA, Davies AJA and Ipp AJA). They contended that the primary judge erred in his construction of the exclusion clauses and that their effect, on their ordinary and natural meaning, was to relieve the solicitors of all liability to the Perpetual Companies. They also argued that his Honour had erred in rejecting the appellants' claim for contribution from the respondents. The first argument failed and needs no further consideration.

[140] With respect to contribution, Stein JA reviewed a number of recent cases, including Cockburn v GIO Finance Ltd (No 2) ^[111] , in which it was held that a common obligation giving rise to co-ordinate liability can only arise in cases in which the parties are liable to perform substantially the same obligation, and the liabilities are of the same nature and to the same extent:

The liability of [the appellants] to [the respondents] arose out of the breach by the solicitors of the trust arising under the Subscription Agreement and by reason of the appointment of the solicitors as [the Perpetual Companies'] agent on settlement, as well as for negligence in the performance of their trust obligations.

These were different trusts and different breaches. They were simply not 'of the same nature and the same extent'. There was no common obligation owed to the beneficiaries. Indeed, the obligation of the solicitors was to [the Perpetual Companies] ... The transactions were related, however this is not sufficient. Something more is needed to enliven the right to contribution.

It cannot be said that the solicitors and [the Perpetual Companies] are liable to perform substantially the same obligation.

Indeed, they are liable with respect to different obligations and the liability is not a common one. The solicitors had no liability which was capable of being co-ordinate with [the Perpetual Companies'] liability to [their] beneficiaries.

[141] Davies AJA agreed generally with Stein JA. On the issue of contribution, his Honour noted that the claim was pursued under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) or s 23B of the Wrongs Act, each of which is relevantly to the same effect, and also, on the basis of an entitlement to contribution in equity. On any basis, his Honour held, although he did not deal in detail with those two Acts, the claim failed.

[The Perpetual Companies], on the one hand, and the solicitors, on the other, were not under co-ordinate liabilities in respect of the damages awarded. The damages which the solicitors were ordered to pay ... were awarded because they flowed from the solicitors' breach of their duty to those parties. One party who has been ordered to pay monies to another party, by way of compensation for breach of trust, may not rely upon principles of contribution to recover back some of the damages which it has been ordered to pay ...

[The Perpetual Companies], on the one hand, and the solicitors, on the other, were not persons whose liability was 'of the same nature and the same extent'. These words were used by Lord Chelmsford in Caledonian Railway Co v Colt ^[112] and by Lord Ross in BP Petroleum Development Ltd v Esso Petroleum Co Ltd ^[113] . They were adopted by Gummow J in Street v Retravision (NSW) Pty Ltd ^[114] and by Mason P in Cockburn v GIO Finance Ltd ^[115] . Mason P said that this requirement 'emphasises the need for the two parties to be liable to perform substantially the same obligation'.

[142] The Perpetual Companies subsequently moved the Court for orders to lead to a full and proper consideration of the appellants' submission founded on s 23B of the Wrongs Act. The Court indicated that it would provide supplementary reasons in response to written submissions in respect of that section.

[143] Stein JA adhered to his opinion that the appellants were not entitled to an order for contribution, whether under the Wrongs Act or otherwise. His Honour concluded that on the proper construction of ss 23B(1) and 23A(1) of the Wrongs Act, the appellants could only recover contribution from any other person liable in respect of the same damage if the parties who suffered the damage (the plaintiff beneficiaries) were entitled to recover compensation from the appellants in respect of that damage. His Honour held that such a condition could not be satisfied in this case because the beneficiaries of a trust do not have a right of action for compensation against a third party who may have been in breach of an obligation owed to the beneficiaries' trustee: because the appellants' liability was solely to the respondents who alone had a liability to the beneficiaries, the appellants were not entitled to contribution. The authorities upon which his Honour relied appear from the following passages in his judgment:

Section 23B(1) has to be understood in the light of the definitional provision in s 23A(1). The latter provision says that 'a person is liable in respect of any damage' (the same words as in s 23B(1)) 'if the person who suffered that damage ... is entitled to recover compensation from the first mentioned person in respect of that damage ... ... apos;.

Substituting the parties to this litigation into the provision means that the appellant solicitors may recover contribution from any other person liable in respect of the same damage if the beneficiaries (who suffered the damage) are entitled to recover compensation from the appellants with respect of that damage.

For s 23B to apply it is therefore essential that the beneficiaries are entitled to recover compensation from the appellants.

This requirement cannot be here satisfied because, as a general proposition, beneficiaries of a trust do not have a right of action for compensation against a third party who wrongly breached an obligation owed to the trustee of the beneficiaries. See, for example, Hayim v Citibank NA ^[116] ...

There are some circumstances where beneficiaries may be entitled to join their trustee in proceedings against a third party, but the rationale is to enforce the trustee's rights as against the third party. It is only in an exceptional case, such as BT Australia Ltd v Raine & Horne Pty Ltd ^[117] , where beneficiaries, on particular facts, have a direct right of action against a third party. Such a situation does not arise in the present case.

In the instant case the appellants' liability was solely to the respondents and the respondents alone had a liability to the beneficiaries ...

(original emphasis)

[144] Davies AJA reiterated his view that the respondents were under no liability to contribute under the Wrongs Act because there was no co-ordinate liability in respect of the damages awarded. The appellants were ordered to pay damages because of the breach of their duty to the respondents. This was a separate and distinct source of liability from that of the respondents which arose from the breach of their duty to the beneficiaries.

[145] Davies AJA further held that in the circumstances it would not be just and equitable for an order for contribution to be made. His Honour referred to s 24(2) of the Act which provides that a court has the power to exempt any person from liability to make a contribution, and concluded that the Perpetual Companies were entitled in the circumstances to be fully indemnified by the solicitors.

[146] Ipp AJA agreed with the supplementary reasons of both Stein JA and Davies AJA.

The appeal to this Court

[147] The solicitors have appealed to this Court on only one ground, namely that:

The Court [of Appeal of New South Wales] erred in holding that the Appellants are not entitled to contribution against the Respondents pursuant to section 23B of the Wrongs Act 1958 (Victoria).

[148] It is necessary to set out the relevant parts of s 23A(1) and s 23B of the Wrongs Act:

23A Definitions

(1)

For the purposes of this Part a person is liable in respect of any damage if the person who suffered that damage, or anyone representing the estate or dependants of that person, is entitled to recover compensation from the first-mentioned person in respect of that damage whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise.

...

23B Entitlement to contribution

(1)

Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).

(2)

A person shall be entitled to recover contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred provided that that person was so liable immediately before that person made or was ordered or agreed to make the payment in respect of which the contribution is sought.

(3)

A person shall be liable to make contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based.

(4)

Subject to section 24(2B), a person who in good faith has made or agreed to make any payment in settlement or compromise of a claim made against that person in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not the person who has made or agreed to make the payment is or ever was liable in respect of the damage provided that that person would have been liable assuming that the factual basis of the claim against that person could be established.

(5)

Subject to section 24(2B), a judgment given in an action brought by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.

(6)

References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against that person in Victoria by or on behalf of the person who suffered the damage and it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a place outside Victoria.

[149] The appellants contend that on three separate bases under the Act they are entitled to contribution from the respondents: first, that their conduct and that of the respondents, both being breaches of a fiduciary kind, caused the same damage to the same victims; secondly, that both are relevantly, that is co-ordinately, liable in respect of that damage; and, thirdly, that the appellants were in any event, in the unusual circumstances of this case, directly liable to the original plaintiffs, although they were only beneficially entitled to the relevant funds, and therefore both the appellants and the respondents are liable in respect of the same damage.

[150] Because of the view that I take of the third of the appellants' contentions it is unnecessary for me to deal with the other two of them.

[151] The appellants' third contention is that, because they were, in the circumstances, directly liable to the plaintiff beneficiaries under s 11 of the Fair Trading Act, they were liable in respect of the same damage as the respondents.

[152] The respondents argue that liability on this basis is entirely hypothetical: that, for example, it cannot be known whether the plaintiff beneficiaries would have obtained a judgment against the appellants for contravention of the Fair Trading Act. But that is precisely the decision which a court construing the Wrongs Act has to make, and, as here, sometimes in circumstances in which the plaintiffs have for their own good reasons been selective about whom they have sued, and upon which causes of action they have relied.

[153] The respondents' argument does not therefore answer the appellants' contention. Section 23B(6) of the Wrongs Act refers to "liability which has been or could be established" in respect of a person. It accordingly becomes necessary to determine whether on the facts an action under the Fair Trading Act could have been successfully maintained.

[154] Section 11(1) of the Fair Trading Act provided ^[118] :

A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Section 37(1) of that Act provided ^[119] :

A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part II may recover the amount of the loss or damage by proceeding against that other person or against any person involved in the contravention.

[155] Rolfe J found that the appellants had engaged in misleading conduct with respect to the statements that they made to the respondents and which gave the impression that settlement of particular purchases of shares in ECCC had taken place conformably with the Subscription Agreement. The further question therefore becomes whether the conduct that misled the respondents could also be taken to have caused the beneficiaries to have suffered loss, injury or damage. As will appear, in my opinion it did.

[156] Reference should first be made to Poignand v NZI Securities Australia Ltd ^[120] in which Gummow J considered the operation of s 87(1A) of the Trade Practices Act 1974 (Cth) which has features in common with s 37 of the Fair Trading Act and which provides as follows:

(1A) Without limiting the generality of section 80, the Court may:

(a)

on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of an-other person that was engaged in in contravention of [relevantly, s 52]; or

...

make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (2)) if the Court considers that the order or orders concerned will:

(c)

compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage; or

(d)

prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.

[157] In that case, beneficiaries who had suffered or were likely to suffer loss or damage because of the conduct of a third party in dealing with the trustee of the relevant trust were themselves able to seek remedies against the third party under the Trade Practices Act. This was so because of the operation of s 87(1A) which allowed action to be taken by the beneficiaries even though the conduct which contravened the Trade Practices Act was directed to the trustee. In affirming that construction of s 87(1A), Gummow J said ^[121] :

The result of the operation of the statute law is to confer standing upon the unit holders to act now against the respondents for contravention of the TP Act and to seek various remedies.

[158] What his Honour said there, is, in my opinion, apposite here. Section 37(1) of the Fair Trading Act in its terms operated to confer standing upon the plaintiff beneficiaries to sue the appellants had they so wished. Had the plaintiff beneficiaries chosen to commence an action against the appellants for breach of the Fair Trading Act, they would not, in my view, have had to show that they themselves relied on the misleading or deceptive representations made by the appellants ^[122] . Rather, they would have needed only to show that the misleading or deceptive conduct of the appellants was a genuine causal factor in their loss.

[159] In the present case it cannot be doubted that the plaintiff beneficiaries suffered loss. What was the loss? It was the money that they had provided to the respondents for investment on their behalf. That was what the plaintiffs sought to recover, and it was of no consequence to them who reimbursed them or how, legally, those involved might choose to characterize the plaintiffs' entitlement and those others' obligations. Was the loss of the plaintiffs' money caused by the appellants' misleading and deceptive conduct towards the respondents as well as the respondents' breaches of trust? In my view, the loss was similarly caused by the conduct that misled the respondents and induced them to act in the manner that they did. Had the appellants not misled the respondents as to whether the making of the investments was being done in conformity with the Subscription Agreement, it is likely that the respondents would not have continued to invest the beneficiaries' funds in ECCC and could and would have called for a return of money earlier invested, and at a time when ECCC would have been in a position to refund it. The fact that other money held on behalf of other persons may have also been invested and lost does not mean that other readily quantifiable losses and therefore damages could not be recovered by the plaintiff beneficiaries here, from the appellants.

[160] If it be the case that a cause of the beneficiaries' loss was the appellants' breach of the Fair Trading Act also, as I think it was, the situation is this. First, the respondents are liable to the beneficiaries to the extent of the funds invested on their behalf in ECCC. Secondly, the appellants were also liable to the beneficiaries to the extent of the money invested in ECCC on their behalf. It follows that the respondents and the appellants are "liable in respect of the same damage", the loss of the beneficiaries' money, for the purposes of s 23B(1) of the Wrongs Act. It is not relevant that the beneficiaries did not in fact pursue an action against the appellants. This follows from the language of s 23B(6) of the Act.

[161] For the first time, during oral argument in this Court, the respondents sought to rely upon the expiration of the period of limitation stated in s 37(2) of the Fair Trading Act which provided as follows:

A proceeding under subsection (1) may be commenced at any time within three years after the date on which the cause of action accrued.

[162] Even if the respondents were allowed to set up a previously unheralded limitations defence at this late stage, it would fail for the reason that the Wrongs Act is concerned not with whom a plaintiff has chosen to sue or not to sue, but whom it might have sued, at or by the time when the contribution proceedings were actually commenced. The appellants are therefore entitled to contribution from the respondents under the Act.

[163] The general rule that beneficiaries may not sue on their own behalf in respect of damage caused by third parties to trustees unless the trustees refuse to sue, in which event they should also be joined as defendants in the beneficiaries' suit, has no relevant application in the circumstance that there is a separate statutory remedy which is not to be constrained, whether by a non-statutory rule, however well established, or otherwise. To that rule in any event there are exceptions and this, it seems to me, would be one of them. As Lord Templeman, in giving the advice of the Privy Council in Hayim v Citibank NA ^[123] said:

[The] authorities demonstrate that a beneficiary has no cause of action against a third party save in special circumstances which embrace a failure, excusable or inexcusable, by the trustee in the performance of the duty owned by the trustees to the beneficiary to protect the trust estate or to protect the interests of the beneficiary in the trust estate.

[164] Such an exception is well justified. A beneficiary is entitled to be wary of the enthusiasm and performance in litigation of a trustee, even if the trustee has duly instigated it, in circumstances in which there is obviously much potential for a conflict of interest and the trustee's own conduct is seriously impugned. This provides good reason for an exception of the kind identified by the Privy Council. Hayim does not in my respectful opinion stand as an authority in support of the respondents' arguments. Indeed it assists the appellants. The other case, BT Australia Ltd v Raine & Horne Pty Ltd ^[124] , which Stein JA in the Court of Appeal thought relevant also assists them. It was a case of negligent misstatement. If a negligent misstatement may in principle, and I see no reason why it should not, be equated with any other form of negligent conduct or breach, by misrepresentation or deceptive conduct contrary to the Fair Trading Act, then relief in favour of the appellants should be available here. If the unit holders in BT Australia could sue the misrepresentor there, then there is no reason in principle why the plaintiff beneficiaries might not sue the appellants here, as misrepresentors under the Fair Trading Act.

[165] It has been suggested that because some of the plaintiffs were themselves trustees, if the appellants were to succeed here, then by parity of reasoning the plaintiffs' beneficiaries also, and indeed any beneficiaries of beneficiaries, and so on, could also sue: that such a possible consequence provided reason to deny the appellants relief by way of contribution. This is, in a sense, a type of floodgates argument. I would reject it. The general principle stands, and any beneficiaries would, before they could sue, need to bring themselves within an exception to it, assuming that they could in all other respects show that they had a good cause of action.

[166] It has also been suggested that in some way the appellants would be placed in an unjustifiable position of advantage if they were entitled to recover contribution, because of a circumstance of a fortuitous kind, the presence of beneficiaries under a trust having a right personally to sue the appellants, rather than being confined to their rights against the respondent trustees. I do not agree with the suggestion. The right to contribution is the consequence at which the Wrongs Act aims and follows from a natural reading of it and the Fair Trading Act. Furthermore, and in any event, exposure to the possibility of multiple claims is hardly an advantage. The fact that the plaintiffs chose not to make them all is itself entirely fortuitous and has nothing to say about the meaning of the Wrongs Act. It is an Act intended to extinguish technical defences based on old equitable and common law rules which denied a fair and reasonable sharing of blame among those who have contributed to identifiable loss and damage, and it is to that intention, readily discernible from its language, that I will give effect. Contrary to what Rolfe J said, the whole purpose of the Act is to focus on the damage, and not the breaches. The nature of the breaches is irrelevant. Whether there is liability depends upon the identification of the damage and not on the causes of action available or chosen to pursue it.

The respondents' claim for indemnity

[167] Kirby J in his judgment has dealt with the respondents' reliance on s 24AD(4) of the Wrongs Act. I agree with his Honour's reasoning and conclusions with respect to that reliance. I need add nothing about it.

[168] The appeal should be allowed. The orders of the Court of Appeal should be set aside to the extent that they dismissed the appellants' claim for contribution. In place of those orders the appeal to that Court should be allowed to such extent, with costs. The proceedings should be remitted to the Commercial List of the Equity Division of the Supreme Court of New South Wales for determination of the amount of contribution which the appellants should recover under the Wrongs Act. The respondents should pay the appellants' costs of the appeal to this Court. It will be for the Supreme Court of New South Wales to decide the issue of costs in that Court.