Zervas v Burkitt (No 2)

Case [2019] NSWCA 236

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Zervas v Burkitt (No 2) [2019] NSWCA 236
Hearing dates: 10 September 2019
Date of orders: 26 September 2019
Decision date: 26 September 2019
Before: Bell P at [1]; Macfarlan JA at [73]; McCallum JA at [74]
Decision:

1.   Appeal be allowed in part.

 

2.   Order 1 of the orders made by Levy SC DCJ on 2 November 2018 be varied so as to delete the reference to the second defendant.

 

3.   Order a verdict and judgment for the plaintiff against the second defendant in the sum of $119,135.96.

 

4.   Order 3 of the orders made by Levy SC DCJ on 2 November 2018 be set aside and in lieu thereof order that the first and second defendants are jointly and severally liable to pay the plaintiff’s costs of the proceedings at first instance on the ordinary basis.

 5.   The appellant pay 80% of the cost of the appeal.
Catchwords: APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability
Legislation Cited: Civil Liability Act 2002 (NSW) Pt 4, s 34
Competition and Consumer Act 2010 (Cth) Pt VIA, s 87CB; Pt XI, s 131; s 140, Sch 2
Australian Consumer Law ss 1, 18, 236
Fair Trading Act 1987 (NSW) ss 28, 32
Cases Cited: ACCC v Michigan Group Pty Ltd [2002] FCA 1439
Central Darling Shire Council v Greeney [2015] NSWCA 51
Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Tort Reports 81-731
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
LM Investment Management Limited (In Liquidation) (Receivers appointed) v BMT & Assoc Pty Limited [2015] NSWSC 1902
Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; 65 MVR 578
Nominal Defendant v Bacon [2014] NSWCA 275; 67 MVR 425
Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354
Porges v Adcock Private Equity Pty Ltd [2019] NSWCA 79
Category:Principal judgment
Parties: Fotis Zervas (Appellant)
Miles Burkitt (First Respondent)
Michael Amro (Second Respondent)
Ultimate Car Rentals Australia Pty Limited (In Liq) (Third Respondent)
Representation:

Counsel:
T Castle and D Edney (Appellant)
C P O’Neill (First Respondent)

  Solicitors:
J Kartsounis & Co Solicitors (Appellant)
Hicksons Lawyers (First Respondent)
File Number(s): 2018/367709
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
[2018] NSWDC 328
Date of Decision:
2 November 2018
Before:
Levy SC DCJ
File Number(s):
2016/194972

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Fotis Zervas, the appellant, was the second of three defendants in proceedings brought in the District Court of New South Wales by…

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AGLC
Zervas v Burkitt (No 2) [2019] NSWCA 236
Case
[2019] NSWCA 236
Decision Date

CaseChat Overview and Summary

The appeal in *Zervas v Burkitt (No 2)* concerned alleged misleading or deceptive conduct and accessorial liability. The dispute arose from representations made about future conduct, and the court was required to determine liability where the applicant had been held liable for causes of action not originally pleaded against him. Further issues included whether the failure to accept an offer of insurance constituted a failure to mitigate loss, the apportionment of liability, and variations to costs orders, including the application of joint and several liability.

The Court of Appeal considered the nature of representations as to future conduct and the principles governing accessorial liability under the Australian Consumer Law. It examined the extent to which a party could be held liable for conduct not explicitly pleaded and the requirements for establishing a failure to mitigate loss. The court also addressed the principles for apportioning liability between multiple defendants and the appropriate basis for awarding costs, particularly in the context of joint and several liability.

The appeal was allowed in part. The court varied the original orders by deleting a reference to the second defendant in one order and instead entered a verdict and judgment for the plaintiff against the second defendant for $119,135.96. The original costs order was set aside, and in its place, the first and second defendants were ordered to be jointly and severally liable for the plaintiff's costs at first instance on the ordinary basis. The appellant was ordered to pay 80% of the costs of the appeal.

Orders

Orders of the court

1. Appeal be allowed in part.

2. Order 1 of the orders made by Levy SC DCJ on 2 November 2018 be varied so as to delete the reference to the second defendant.

3. Order a verdict and judgment for the plaintiff against the second defendant in the sum of $119,135.96.

4. Order 3 of the orders made by Levy SC DCJ on 2 November 2018 be set aside and in lieu thereof order that the first and second defendants are jointly and severally liable to pay the plaintiff’s costs of the proceedings at first instance on the ordinary basis.

5. The appellant pay 80% of the cost of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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