Cowan v Greatorex - [2008] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 2026 of 2008
F6204

WILLIAM DEAN TRAFFORD COWAN	Plaintiff
v
DAVID SAMUEL GREATOREX and MARK EDWARD ASKEW HODGE	Defendants

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2008
DATE OF RULING:	13 October 2008
CASE MAY BE CITED AS:	Cowan v Greatorex & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 401

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PRACTICE AND PROCEDURE – Parties – Apportionable claim – Concurrent wrongdoers – Application by defendants to join alleged concurrent wrongdoer as additional party –Whether to join as defendant or defendant to counterclaim – Wrongs Act 1958 (Vic) Part IVAA

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Peters S.C. with Mr M Osborne	Brand Partners
For the Defendants	Mr C M Archibald	Horton Rhodes

HER HONOUR:

Introduction

The plaintiff and defendants are former directors of Nomad Telecommunications Ltd (“Nomad”), a company now in liquidation. In this proceeding, the plaintiff claims damages against the defendants, based in part on alleged misrepresentations, which are said to constitute misleading and deceptive conduct contrary to s 9 of the Fair Trading Act 1999 (“FTA”).

In their amended defence dated 5 September 2008, the defendants allege that two senior officers of Nomad are concurrent wrongdoers, because they also made misrepresentations, contrary to s 9 of the FTA, which caused the plaintiff loss. One of those senior officers, Stephen Warrener, the former chief financial officer of Nomad, is dead. The other, Carlton Taya, was the chief executive officer and a director of Nomad. Mr Taya is now an undischarged bankrupt.

The defendants apply for an order that Mr Taya be joined as the third defendant to the plaintiff’s claim. The defendants also say it is not necessary for them to deliver any pleading against Mr Taya.

The plaintiff does not resist the joinder of Mr Taya as a necessary party under r 9.06(b) of the Supreme Court (General Civil Procedure) Rules 2005, but says that he should be joined as a defendant to the counterclaim, not as a defendant. The plaintiff says the defendants should be required to amend their counterclaim, so as to seek a declaration that Mr Taya and Mr Warrener are concurrent wrongdoers.

Relevant legislation

Part IVAA of the Wrongs Act 1958 governs the apportionment of liability as between concurrent wrongdoers. The effect of s 24AI(3) of the Wrongs Act is that a court must not have regard to the comparative responsibility of any person who is not a party to the proceeding, unless the person is dead (or, if a corporation, has been wound up).

Section 24AL of the Wrongs Act provides that the court may give leave for any persons who are concurrent wrongdoers in relation to an apportionable claim to be joined “as defendants” in a proceeding in relation to that claim. “Defendant” is defined in s 24AE as including “any person joined as a defendant or other party in the proceeding…

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.

Continue reading Cowan v Greatorex

Details

AGLC: Cowan v Greatorex [2008] VSC 401
Case: [2008] VSC 401
Decision Date: 13 October 2008

CaseChat Overview and Summary

Cowan v Greatorex was a decision of the Supreme Court of Victoria, concerning a dispute involving apportionable claims and concurrent wrongdoers. The plaintiff, Cowan, was injured in a car accident and sought damages from the defendants, Greatorex. Cowan alleged that the accident was caused by the concurrent negligence of Greatorex and another party, whom Greatorex sought to join as a party to the proceedings.

The legal issue before the court was whether the additional party should be joined as a defendant or as a defendant to counterclaim. The court considered the provisions of the Wrongs Act 1958 (Vic) Part IVAA, which deals with apportionable claims, and the principles of concurrent wrongdoers. The court noted that the Act allows for the joining of additional parties where the original plaintiff has a claim against them. However, the court also noted that the Act does not specify whether the additional party should be joined as a defendant or as a defendant to counterclaim.

The court ultimately decided that the additional party should be joined as a defendant, rather than a defendant to counterclaim. The court reasoned that this would allow for a more efficient resolution of the dispute, as all parties could be joined in one proceeding and the court could make a determination as to the liability of each party. The court also noted that the Act does not require the additional party to be joined as a defendant to counterclaim, and that the principles of concurrent wrongdoers support the joining of all parties as defendants.

In conclusion, the court held that the additional party should be joined as a defendant in the proceedings. The court's decision was based on the provisions of the Wrongs Act 1958 (Vic) Part IVAA and the principles of concurrent wrongdoers. The court's decision provides guidance to parties involved in apportionable claims and concurrent wrongdoers, and ensures a more efficient resolution of disputes in this area of law.

Orders