Latol Pty Limited v Gersbeck [2015] NSWSC 1631

Latol Pty Limited v Gersbeck [2015] NSWSC 1631

The defendant engaged in misleading or deceptive conduct in breach of s 12DA of the ASIC Act. The plaintiff relied on and suffered loss by reason of that conduct. Although the plaintiff acted carelessly, this did not break the chain of causation but justified a reduction of damages by 20% under s 12GF(1B) as just and equitable. The claim was not apportionable under s 12GR because there was no concurrent wrongdoer within the relevant statutory meaning. The defendant did not act fraudulently so as to prevent the reduction in damages for contributory negligence.

Jurisdiction
Australia
Judgment Date
18 November 2015
Procedural Posture
Civil / Principal Judgment on Liability and Apportionment of Damages
Outcome
Judgment for the plaintiff, with damages to be reduced by 20% for contributory negligence, and directions for parties to agree on the quantum of damages.
Legal Topics
['misleading or Deceptive Conduct' 'apportionment of Liability' 'contributory Negligence' 'damages Assessment' 'statutory Remedies' 'proportionate Liability']
['civil Law' 'financial Services Law'] ['misleading or Deceptive Conduct' 'apportionment of Liability' 'contributory Negligence' 'damages Assessment' 'statutory Remedies' 'proportionate Liability']

Case Brief

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Procedural Posture

Civil / Principal Judgment on Liability and Apportionment of Damages

Legal Issues

  1. 1 ['Whether the defendant engaged in misleading or deceptive conduct in relation to financial services under s 12DA of the ASIC Act' "Whether plaintiff relied on the defendant's representations" "Whether such representations caused the plaintiff's loss" "Whether damages should be reduced due to the plaintiff's failure to take reasonable care under s 12GF(1B)" "Whether apportionment is required due to a 'concurrent wrongdoer' under s 12GR of the ASIC Act" "Whether the defendant's conduct was fraudulent so as to exclude reduction for contributory negligence"]

Ratio Decidendi

The defendant engaged in misleading or deceptive conduct in breach of s 12DA of the ASIC Act. The plaintiff relied on and suffered loss by reason of that conduct. Although the plaintiff acted carelessly, this did not break the chain of causation but justified a reduction of damages by 20% under s 12GF(1B) as just and equitable. The claim was not apportionable under s 12GR because there was no concurrent wrongdoer within the relevant statutory meaning. The defendant did not act fraudulently so as to prevent the reduction in damages for contributory negligence.

Court Disposition

Judgment for the plaintiff, with damages to be reduced by 20% for contributory negligence, and directions for parties to agree on the quantum of damages.

Orders

  • ['Judgment for the plaintiff.' 'Damages to be reduced by 20% pursuant to s 12GF(1B) of the ASIC Act 2001 (Cth).' 'Parties to attempt to reach agreement as to quantum of damages and costs orders.' 'If no agreement is reached, parties to file schedules setting out methods of calculating loss.' 'Case adjourned for...