Zervas v Burkitt (No 2) [2019] NSWCA 236

The primary judge erred in finding Mr Zervas liable in contract, bailment and directly under s 18 of the Australian Consumer Law because those claims were not pleaded or run against him. However, the judgment against him was supportable on the pleaded accessorial liability case: as sole director and the person who made the insurance representation, he knew UCRA did not itself intend to arrange the promised comprehensive insurance and therefore knew UCRA lacked reasonable grounds for the representation. The alleged Suncorp offer did not reduce damages because it was not proved to be an unconditional offer capable of acceptance, nor was unreasonable rejection proved. The claim against Mr...

Jurisdiction: Australia
Judgment Date: 26 September 2019
Procedural Posture: Civil Appeal / Appeal From District Court of New South Wales Decision [2018] NSWDC 328
Outcome: Appeal allowed in part; first instance liability and costs orders varied; judgment entered against Mr Zervas for $119,135.96; appellant ordered to pay 80% of the cost of the appeal.
Legal Topics: ['misleading or Deceptive Conduct' 'accessorial Liability' 'representation as to Future Conduct' 'failure to Mitigate Loss' 'proportionate Liability' 'concurrent Wrongdoers' 'apportionment of Liability' 'variation of Costs Orders' 'joint and Several Liability']

['australian Consumer Law' 'civil Liability' 'contract' 'bailment' 'negligence' 'costs'] ['misleading or Deceptive Conduct' 'accessorial Liability' 'representation as to Future Conduct' 'failure to Mitigate Loss' 'proportionate Liability' 'concurrent Wrongdoers' 'apportionment of Liability' 'variation of Costs Orders' 'joint and Several Liability']

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Procedural Posture

Civil Appeal / Appeal From District Court of New South Wales Decision [2018] NSWDC 328

Legal Issues

1 ['Whether judgment against Mr Zervas could stand where the primary judge held him liable for causes of action not pleaded or run against him.' "Whether Mr Zervas should have been held liable for knowing involvement in UCRA's misleading or deceptive conduct under s 18 of the Australian Consumer Law." 'Whether damages should have been reduced because Dr Burkitt failed to accept an alleged insurance settlement offer.' 'Whether the primary judge erred in treating UCRA and Mr Zervas, on the one hand, and Mr Amro, on the other, as concurrent wrongdoers.' 'Whether Part 4 of the Civil Liability Act 2002 (NSW), including s 34, applied to the claim against Mr Zervas under the Australian Consumer Law (NSW).' 'Whether the primary judge erred in apportioning responsibility 50:50 and in making the first instance costs order.']

Ratio Decidendi

Court Disposition

Appeal allowed in part; first instance liability and costs orders varied; judgment entered against Mr Zervas for $119,135.96; appellant ordered to pay 80% of the cost of the appeal.

Orders

['Appeal be allowed in part.' '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.' 'Order a verdict and judgment for the plaintiff against the second defendant in the sum of $119,135.96.' "Order 3 of the orders made by Levy SC DCJ on 2...