Zervas v Burkitt (No 2)

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.