1 STEIN JA: This is a Notice of Motion filed by the respondent corporations seeking orders for the purpose of considering whether the court has omitted to deal with the appellants' submission based on s 23B of the Wrongs Act 1958 (Vic). If this be the case, the motion asks the court to consider whether it should provide supplementary reasons for its judgment delivered on 30 July 2001.
2 The appellants consent to the court determining the application notwithstanding that they have filed a special leave application in the High Court. The principal basis for the special leave application is that the Court of Appeal failed to consider and give reasons in relation to the appellants' claim against the respondents pursuant to s 23B. Both parties agree to the motion to this court being determined in the absence of the parties and on the basis of written submissions filed.
3 The reasons contained in my judgment of 30 July 2001 make no specific reference to s 23B, except in a global way, see para 11. The judgment dealt, at some length, with the appellants' claim for equitable contribution, which claim was dismissed. Davies AJA made specific reference to the Victorian provision in para 137. Ipp AJA agreed with my judgment.
4 There is substance in the appellants' contention that I did not squarely deal with their claim for contribution under the Victorian Wrongs Act. There was a reason for this omission. At the very end of Mr Pembroke SC's comprehensive and lengthy address on behalf of the appellants he said:
I'd like to finish here. I must just add there is reliance also on s 23B of the Victorian Wrongs Act, which provides for a statutory form of contribution. The criterion for the application of that statute is that there be the same damage. The substantive issue seems to be the same issue as that which arises in relation to the application of equitable contribution.
5 This statement by counsel lulled me into the understanding that the s 23B point turned on the same issue as equitable contribution. Upon recently reading the transcript of the appeal I see that Mr Pembroke sought to correct his submission in reply and make the point that the statutory provision in the Wrongs Act was not the same issue as equitable contribution, see T 99.
6 In these circumstances I think that the parties are entitled to supplementary reasons dealing with the appellants' argument based on s 23B. However, these reasons should be read in the light of the judgment given on 30 July 2001.
7 Section 23B(1) provides:
Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).
8 It is also necessary to set forth s 23A(1):
For the purposes of this Part a person is liable in respect of any damage if the person who suffered that damage, or anyone representing the estate or dependents of that person, is entitled to recover compensation from the first-mentioned person in respect of that damage whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise.
9 On a proper construction of these provisions I do not see that the appellants are entitled to an order for contribution under the Victorian statute.
10 Section 23B(1) has to be understood in the light of the definitional provision in s 23A(1). The latter provision says that 'a person is liable in respect of any damage' (the same words as in s 23B(1)) 'if the person who suffered that damage … is entitled to recover compensation from the first mentioned person in respect of that damage …'.
11 Substituting the parties to this litigation into the provision means that the appellant solicitors may recover contribution from any other person liable in respect of the same damage if the beneficiaries (who suffered the damage) are entitled to recover compensation from the appellants with respect of that damage.
12 For s 23B to apply it is therefore essential that the beneficiaries are entitled to recover compensation from the appellants.
13 This requirement cannot be here satisfied because, as a general proposition, beneficiaries of a trust do not have a right of action for compensation against a third party who wrongly breached an obligation owed to the trustee of the beneficiaries. See, for example, Hayim v Citibank NA [1987] AC 730 at 748. See also the discussion and citations at para 121 of my reasons for judgment of 23 July 2001.
14 There are some circumstances where beneficiaries may be entitled to join their trustee in proceedings against a third party, but the rationale is to enforce the trustee's rights as against the third party. It is only in an exceptional case, such as BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221, where beneficiaries, on particular facts, have a direct right of action against a third party. Such a situation does not arise in the present case.
15 In the instant case the appellants' liability was solely to the respondents and the respondents alone had a liability to the beneficiaries, see my reasons of 23 July 2001, paras 116 - 121 and Davies AJA at paras 140 - 142.
16 Further, Rolfe J found against the appellants on s 23B on the basis that the 'same damage' was not involved.
17 In my view, his Honour was correct, as are the respondents' submission to this court on the point. The parties (the appellants and the respondents) were not liable with respect to the same debt or to make good the same loss sustained by the beneficiaries. The respondents owned the property which was lost notwithstanding that they held it on trust for the beneficiaries. The respondents appointed the appellants as their agents and trustees and the solicitors breached duties which they owed personally to the respondents. The respondents had their own rights of action against the appellants under which the appellants were liable to make good the loss suffered by the respondents. This loss may include, in an appropriate case, the loss suffered by the trustees in being exposed to claims for breach of trust, (Royal Brunei Airlines SDN v Ming [1995] 2 AC 378).
18 Since writing these reasons I have had the benefit of reading the draft supplementary reasons for judgment of Davies AJA. I agree with his Honour and, in particular, paragraph 26.
19 It follows, in my view, that no alteration is required to the orders made by the court on 30 July 2001 dismissing the appeal with costs.
20 DAVIES AJA: Judgment in this appeal was handed down on 30 July 2001 (Charles Delius Somerville Alexander and Ors (t/as Minter Ellison) v Perpetual Trustees WA Limited (ACN 008 666 886) and Perpetual Trustee Company Limited (ACN 000 001 007) [2001] NSWCA 240). Subsequently, the parties requested the members of the Court, Stein JA, Ipp AJA and myself, to provide further reasons dealing with the submissions made on behalf of the appellants, Charles Delius Somerville Alexander and Others, solicitors, who traded as Minter Ellison, which relied upon s23B of the Wrongs Act 1958 (Vic).
21 In the appeal, it had been submitted on behalf of the appellants both in writing and orally that the appellants were entitled to contribution from the respondents, Perpetual Trustees WA Limited and Perpetual Trustee Company Limited, under equitable principles, under s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 and under ss 23A, 23B and 24 of the Wrongs Act 1958 (Vic). One distinction between the Victorian provision and the New South Wales provision is that s23A of the Wrongs Act provides that the entitlement to recover compensation lies in respect of damage,
"whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise".