Practice and procedure – Parties – Application by defendants to join additional defendant – Concurrent wrongdoers – Apportionable claim – Corporations Act 2001 (Cth) Part 7.10, Division 2A, Australian Securities and Investments Act 2001 (Cth) Division 2, Subdivision GA, Fair Trading Act 1999 (Vic) ss9, 12, 159, Wrongs Act 1958 (Vic) Part IVAA

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Simpson	Aitken Walker & Strachan
For the First Defendant	Mr B Quinn	Logie-Smith Lanyon
For the Second and Third Defendants	Mr R Strong	Mallesons Stephen Jaques

HER HONOUR:

The plaintiff is one of many people who claim to have lost money through the collapse of the Westpoint group of companies. In this proceeding, the plaintiff seeks damages as a result of what he says was poor advice given to him by the defendants in relation to his investment in some mezzanine notes issued by Market Street Mezzanine Limited, a Westpoint company.

The first defendant (“de Gabriele”) is the person alleged to have given the relevant advice. The plaintiff alleges that, prior to September 2004, de Gabriele was acting as an authorised representative of a company called Strategic Project Marketing Ltd (“SPM”). SPM is now in liquidation. The plaintiff also alleges that, after September 2004, de Gabriele was acting as an employee, servant or agent of the second defendant (“Pyxus”), and an authorised representative of the third defendant (“Chimaera”).

Pyxus and Chimaera have applied by summons dated 26 April 2007 to join SPM as a defendant to the proceeding. They allege that SPM was the employer or principal of de Gabriele at the time of the plaintiff’s initial investment in the mezzanine notes. By their summons, they also seek leave to amend their defence to allege that they, de Gabriele and SPM are “concurrent wrongdoers” within the meaning of Part IVAA of the Wrongs Act 1958 (Vic) (“Wrongs Act”) and equivalent federal legislation[1], thereby taking advantage of the apportionment of liability available under those Acts. In so far as the joinder of SPM would constitute the commencement of a proceeding against a company in liquidation, they also seek leave to do so under s471B of the Corporations Act 2001 (Cth) (“Corporations Act”).
[1]Corporations Act 2001, Part 7.10, Div. 2A; Australian Securities and Investments Act 2001 Div. 2, Subdiv. GA

Although not formally a party to the summons, de Gabriele supports it and has given notice that he will seek leave to make similar amendments to his defence, if Pyxus and Chimaera are successful in their application.

The plaintiff opposes the joinder of SPM and the proposed amendments to the defence. In response to the defendants’ summons, the…

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 Woods v De Gabriele

Details

AGLC: Woods v De Gabriele [2007] VSC 177
Case: [2007] VSC 177
Decision Date: 15 June 2007

CaseChat Overview and Summary

The case of Woods v De Gabriele involved the plaintiff, Woods, bringing an action against De Gabriele, who was alleged to have breached various statutory provisions. Woods sought to hold De Gabriele liable under the Corporations Act 2001 (Cth), the Australian Securities and Investments Act 2001 (Cth), the Fair Trading Act 1999 (Vic), and the Wrongs Act 1958 (Vic). De Gabriele applied to the court to join another party as a defendant, arguing that the new party was a concurrent wrongdoer whose liability could be apportioned under the statutory provisions mentioned. The court needed to determine whether the additional defendant could be joined, and if so, whether the claims against De Gabriele could be apportioned among the defendants.

The court considered the statutory framework provided by the Corporations Act 2001 (Cth) and the Australian Securities and Investments Act 2001 (Cth), which included provisions for concurrent wrongdoers and apportionment of liability. It also examined the principles under the Fair Trading Act 1999 (Vic) and the Wrongs Act 1958 (Vic) regarding concurrent liability and apportionment. The court found that the new party could be joined as a defendant, given that the claims involved concurrent wrongdoers and apportionable claims. The court also determined that the claims could be apportioned among the defendants in accordance with the statutory provisions.

The court's reasoning was grounded in the statutory provisions and their interplay, ensuring that the plaintiff's claims were not prejudiced by the late joinder of the additional defendant. The court held that the claims against De Gabriele could be apportioned among the defendants, allowing for a fair distribution of liability. The court granted the application to join the additional defendant and allowed for the apportionment of claims as per the statutory framework. The orders included the joinder of the new defendant and the apportionment of the claims among all parties involved in the concurrent wrongdoing.

Orders