TIMBERDEN Pty Ltd v HIMAC Group Pty Ltd
[2015] WADC 29
•25 MARCH 2015
TIMBERDEN PTY LTD -v- HIMAC GROUP PTY LTD [2015] WADC 29
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 29 | |
| Case No: | CIV:2079/2013 | 19 MARCH 2015 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 25/03/15 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Claim by the plaintiff apportionable Third party statement of claim struck out | ||
| PDF Version |
| Parties: | TIMBERDEN PTY LTD HIMAC GROUP PTY LTD |
Catchwords: | Third party proceedings Whether plaintiff claim apportionable Whether third party entitled to a contribution of indemnity |
Legislation: | Civil Liability Act 2002 Commonwealth Competition and Consumer Act 2010 Fair Trading Act 2010 |
Case References: | Fudlovski v JCG Accounting and Financial Services Pty Ltd [No 2] [2013] WASC 301 Hark v JGC Accounting and Financial Services Pty Ltd [2015] WASCA 22 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Third Party
AND
HIMAC GROUP PTY LTD
Defendant
Catchwords:
Third party proceedings - Whether plaintiff claim apportionable - Whether third party entitled to a contribution of indemnity
Legislation:
Civil Liability Act 2002
Commonwealth Competition and Consumer Act 2010
Fair Trading Act 2010
Result:
Claim by the plaintiff apportionable
Third party statement of claim struck out
Representation:
Counsel:
Third Party : Ms Hensler
Defendant : Mr Weeks
Solicitors:
Third Party : Burke & Associates
Defendant : Graham & Associates
Case(s) referred to in judgment(s):
Fudlovski v JCG Accounting and Financial Services Pty Ltd [No 2] [2013] WASC 301
Hart v JGC Accounting and Financial Services Pty Ltd [2015] WASCA 22
1 DEPUTY REGISTRAR HEWITT: The facts surrounding the plaintiff's claim in this case involve the purchase by it from the defendant of a large machine for use in the plaintiff's business. It is alleged that the transaction was entered into on the basis of representations made by the defendant as to the weight of the machine and various other characteristics of it.
2 The plaintiff alleges that those representations are in breach of the Fair Trading Act 2010 and the Australian Consumer Law and alternatively that the representations comprised implied terms in the contract, which have been breached, giving rise to a claim for damages.
3 The defendant purchased the machine to be on-sold to the plaintiff from the party now named as a third party. It alleges that the various representations upon which the plaintiff relies were based on information provided to it by the defendant.
4 At an earlier stage the plaintiff and the defendant agreed to orders permitting the defendant to issue a third party notice. It is the pleading filed under that notice which is under attack in the third party's application filed 26 February which seeks an order striking out the statement of claim in the third party proceedings.
5 That application is based on various provisions of the Fair Trading Act 2010, the Civil Liability Act 2002 and the Commonwealth Competition and Consumer Act 2010. Those Acts introduce a concept of proportional liability. The thrust of the Commonwealth legislation is that a claim for economic loss or damage to property which was caused by conduct in contravention of s 18 of the Australian Consumer Law is an apportionable claim and the defendant to such an action is liable to the plaintiff to the extent of his own culpability but not for the whole of the loss where others contributed to that loss. The Civil Liability Act 2002 is to like effect. Insofar as this concept is contained at the Commonwealth level, it is contained in s 87CB of the Consumer and Competition Act 2010 and following. In particular in s 87CD the relevant legislation provides:
87CD Proportionate liability for apportionable claims
(1) In any proceedings involving an apportionable claim:
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and
(b) the court may give judgment against the defendant for not more than that amount.
(2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:
(a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and
(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.
(3) In apportioning responsibility between defendants in the proceedings:
(a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and
(b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.
(4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.
(5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.
6 A concurrent wrongdoer is defined in s 87CB(3) as:
In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
7 In my view there is no material difference between the provisions of the Commonwealth legislation and those in the Civil Liability Act 2002 and I will therefore confine my analysis to the Commonwealth situation.
8 Section 236 of the Australian Consumer Law referred to in s 87CB(1) provides:
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
9 The reference to s 236(1)(b) in regard to Ch 2 and Ch 3 includes an action based on misleading or deceptive conduct.
10 Even though the plaintiff to the action has pleaded its case in a number of alternatives, on my analysis, the provisions of s 87CB(2) operate to create a single apportionable claim notwithstanding that the defendant is pursued on a number of different legal bases. Each of those bases involves conduct which on the face of it contravenes a provision of Ch 2 or Ch 3 of the Consumer Law and as a consequence appear to me to be a single apportionable claim. If that analysis is correct then the only judgment which can be obtained by the plaintiff against the defendant in this action is an award of damages which reflect the defendant's culpability in regard to the transactions for which the plaintiff claims. Since the limit of liability of the defendant is for its own culpability there is no basis upon which it is entitled to obtain what is effectively pleaded as a contribution or indemnity (in par 20 of the statement of claim in the third party proceedings) from the defendant.
11 The defendant has advanced the proposition that since different causes of action are pursued against it the operation of the legislation does not apply to those causes of action which amount to a breach of contract. It is pointed out that the measure of damages in a contractual claim may, but will not necessarily, differ from the measure of damages in a misleading and deceptive conduct case. At first blush that proposition has appeal however I think it is defeated by s 87CB(2) which caters for the proposition that if a number of different causes of action are pursued so long as the conduct complained of amounted to a breach of the relevant provisions of the Act the third party is properly described as a concurrent wrongdoer.
12 A number of authorities have been quoted which in my view broadly support the conclusions which I have reached. Those cases are Hart v JGC Accounting and Financial Services Pty Ltd [2015] WASCA 22 and Fudlovski v JCG Accounting and Financial Services Pty Ltd [No 2] [2013] WASC 301. I understand those cases to advance the proposition that an award of damages against a defendant may be properly reduced even though the concurrent wrongdoer is not a party to the proceedings and does not appear in the court.
13 It follows from the reasoning in this decision that in my view the damages suffered by the plaintiff in its action amount to an apportionable claim which is not capable of supporting a contribution or indemnity order which is effectively what the defendant claims, its damages being said to be any sum to be paid to the plaintiff on the determination of the plaintiff's claim. For these reasons I am of the view that the third party pleading filed by the defendant should be struck out.
0
1
3