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[2012] NSWCA 93
Court of Appeal (NSW)
2012-04-18
Campbell JA, Macfarlan JA, Young JA, Patten AJ, MacFarlan JA
Original judgment source is linked above.
Judgment 1CAMPBELL JA: I agree with Macfarlan JA. 2MACFARLAN JA: The Court gave judgment in this matter on 28 November 2011 (the "Principal Judgment"). Subsequently, the parties reached agreement upon the amount of interest to be awarded to Perpetual (see order (2) made on that day). 3Within 14 days of the date of the judgment each party filed a Notice of Motion seeking varied or supplemental orders. In conformity with directions, the parties thereafter lodged written submissions in relation to those motions. I deal with the orders sought as follows.
PERPETUAL'S NOTICE OF MOTION FILED ON 7 DECEMBER 2011 4Milanex consents to the first order that Perpetual seeks, namely, that order (1) made on 28 November 2011 be varied to add the words "and cross-appeal allowed in part" at the end. The absence of a reference to the cross-appeal in order (1) made on 28 November 2011 was an oversight which should now be corrected under the "slip rule" (r 36.17 of the Uniform Civil Procedure Rules). 5Perpetual next seeks an order that order (6) made on 28 November 2011 be varied to add the words "and the cross-appeal" at the end. Milanex accepts that such a variation would conform with paragraph [123] of the Principal Judgment but submits that if it remains open to Milanex to be heard on the issue of the costs of the cross-appeal, the appropriate order is that each party pay its own costs of the cross-appeal. For reasons to the effect of those given in paragraph [123] of the principal judgment, I consider that Milanex should pay the costs of the cross-appeal and that the order sought by Perpetual should be made. 6Perpetual next seeks an order that Milanex indemnify it in respect of Mr Kotevski's costs in the proceedings below which Perpetual was ordered to pay. Milanex accepts that subject to excluding that part of those costs that Milanex submits related to a positive case that Perpetual conducted against Mr Kotevski, such an order should be made to give effect to the reasoning in paragraphs [118] and [121] of the Principal Judgment. 7In my view the order now sought by Perpetual should be made because the Court's omission to make it was an oversight. I do not consider that it should be qualified in the manner proposed by Milanex. Milanex submits that the case conducted by Perpetual against Mr Kotevski went beyond that which was necessary to propound. Milanex instances cross-examination of Mr Kotevski to the effect that there was an arrangement between him and Mr Micic about the obtaining of the loan, and written submissions to the same effect. However, as held in the Principal Judgment at [63], Perpetual relied upon Milanex's misleading and deceptive conduct in making the subject loan to Mr Kotevski. For Perpetual to establish that it suffered loss as a result of such conduct, it needed to demonstrate that the loan it made to Mr Kotevski was largely irrecoverable. It did so by proceeding against Mr Kotevski. It was reasonable for Perpetual to propound against Mr Kotevski what Milanex describes as Perpetual's positive case. This would have enured to Milanex's advantage if it had been successful. The costs incurred by Perpetual in propounding it were a consequence of Milanex's misleading and deceptive conduct and thus should be recoverable from Milanex.
MILANEX'S NOTICE OF MOTION FILED ON 12 DECEMBER 2011 8Milanex first seeks an order that order (5) made on 28 November 2011 be varied "such that the obligation of Milanex to pay Perpetual's costs of Perpetual's cross-claim against Milanex at first instance and to pay Perpetual's costs of its claim against Mr Kotevski be varied to take into account the conduct by Perpetual of a positive case against Mr Kotevski". 9The reasons that I have given in [7] above apply equally to this order sought by Milanex. Accordingly, the order sought by Milanex should not be made. 10Milanex next seeks an order in the following terms: "An order that the Court give further consideration to and provide further reasons in respect of the availability of contributory negligence as a defence to a claim under the Fair Trading Act by reference to Counsel's note on contributory negligence handed up during the appeal hearing". 11Milanex's written submissions identify paragraph 2(2) of that Note as containing the submission that Milanex contends that the Court did not deal with in its judgment of 28 November 2011. That paragraph was in the following terms: "(2) Section 9 LRMP 1965 as amended in 2001 is wide enough by parity of reasoning to that applied to s 5 LRMP 1946: (a) RAP Industries Pty Ltd v Royall Insurance Australian Limited (1988) 5 ANZ Insurance Cases 68-876 at 75,519-75,520 (b) Jones v Mortgage Acceptance Nominees Limited [1996] FCA 1255; 63 FCR 418 at 420 (c) Hampic v Adams [1999] NSWCA 455; (2000) ATPR 41737 at [62] Paraphrasing s 9 by using the definition of 'wrong': If a person (the claimant) [Perpetual] suffers damage as the result partly of the [sic] Perpetual's failure to take reasonable care (contributory negligence) and partly of the [act or omission that gives rise to a liability in tort] of Milanex the damages recoverable in respect of the [act or omission etc] are to be reduced to such extent as the court thinks just and equitable having regard to Perpetual's share in the responsibility for the damage." 12The authorities cited by Milanex (and other authorities) establish that to attract the right conferred by s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 upon a tortfeasor to obtain contribution from another tortfeasor, it is not necessary that the other tortfeasor has been sued by the plaintiff in tort. It is sufficient if the tortfeasor claiming contribution can demonstrate that the other person is, or at least was, liable in tort to the plaintiff. The effect of paragraph 2(2) of Milanex's Note was that this approach should be applied to s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 which concerns contributory negligence. The thrust of the submission was thus that it did not matter that Milanex had not been sued in tort by Perpetual if Milanex could show that it was in fact liable to Perpetual in tort. 13Quite apart from any other reason, this submission fails because Milanex did not at any stage of the appeal seek to demonstrate to the Court that even though Perpetual's claims against it were only under statute, nevertheless Milanex was liable to Perpetual in tort (compare Transcript 23 August 2011, p 51). Milanex did not for example seek to demonstrate that it owed Perpetual a duty of care in tort and that that duty was breached. This point was encompassed by the statement in paragraph [88] of the Principal Judgment that "[n]either tort nor contractual liability is alleged in the present case". 14The third order sought by Milanex in its Notice of Motion filed on 12 December 2011 is not relevant in light of the conclusion concerning contributory negligence that I have just expressed. 15Finally, Milanex sought an order in the following terms: "4. In the alternative, that the Court in exercising its discretion in relation to the award of costs, make an order varying order 5 such that the obligation of Milanex to pay Perpetual's costs of Perpetual's cross-claim against Milanex at first instance and to pay Perpetual's costs of its claim against Mr Kotevski be varied to take into account the contributory negligence and/or culpability of Perpetual for those costs." 16In the Principal Judgment the Court concluded that Milanex was not entitled to a reduction in Perpetual's damages by virtue of Perpetual's alleged contributory negligence. In my view Milanex should not be permitted to achieve a different result in connection with its costs entitlements. Those entitlements should mirror the position regarding Perpetual's damages. In any event this is a submission that could have been, but was not put on appeal and it should not now be entertained.
ORDERS 17For the reasons given above and to give effect to the parties' agreement concerning interest, I propose the following orders: (1) Set aside order 7 made at first instance on 16 November 2009. (2) Judgment for Perpetual against Milanex for $180,026.30. (3) Order (1) made on 28 November 2011 is varied to add the words "and cross-appeal allowed in part" at the end of the order. (4) Order (6) made on 28 November 2011 is varied to add the words "and the cross-appeal" at the end of the order. (5) Order Milanex to indemnify Perpetual in respect of those of Mr Kotevski's costs in the proceedings below which Perpetual was ordered to pay. (6) Order Milanex to pay Perpetual's costs of Perpetual's Notice of Motion filed on 7 December 2011. (7) Dismiss Milanex's Notice of Motion filed on 12 December 2011. (8) Order Milanex to pay Perpetual's costs of Milanex's Notice of Motion filed on 12 December 2011. 18YOUNG JA: I agree with Macfarlan JA.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2012
Perpetual Trustee Company Ltd
Milanex Pty Ltd