Wealthsure Pty Ltd v Selig [2014] FCAFC 64

Wealthsure Pty Ltd v Selig [2014] FCAFC 64

Claims for damages arising from the same conduct are apportionable under proportionate liability provisions only if they are claims for economic loss under s 1041I caused by contraventions of s 1041H. Where claimants succeed on multiple causes of action, only those based on s 1041H are apportionable; other claims are not. Accordingly, reductions for contributory negligence and apportionment between defendants apply only to those heads of loss. Damages may be assessed on a 'no transaction' basis if evidence supports the claimant would have done nothing absent the contravention. In this case, the court set aside the primary judgment and substituted apportioned amounts reflecting each...

Jurisdiction
Australia
Judgment Date
30 May 2014
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal and cross-appeal allowed in part; primary orders set aside; substituted orders for apportioned judgment sums; parties to be heard on further orders and costs.
Legal Topics
['misleading or Deceptive Conduct' 'financial Product Advice' 'contributory Negligence' 'proportionate Liability' 'damages Assessment']
['corporations Law' 'contract Law' 'torts' 'financial Services Law'] ['misleading or Deceptive Conduct' 'financial Product Advice' 'contributory Negligence' 'proportionate Liability' 'damages Assessment']

Case Brief

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Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the proportionate liability provisions in the Corporations Act 2001 (Cth) and ASIC Act 2001 (Cth) apply to claims based on multiple causes of action resulting in the same loss or damage;' 'Whether damages should be reduced for contributory negligence;' 'Whether consequential losses and compound interest were recoverable;' 'How damages should be apportioned among responsible parties;' 'Whether investment in Neovest Ltd was wholly lost.']

Ratio Decidendi

Claims for damages arising from the same conduct are apportionable under proportionate liability provisions only if they are claims for economic loss under s 1041I caused by contraventions of s 1041H. Where claimants succeed on multiple causes of action, only those based on s 1041H are apportionable; other claims are not. Accordingly, reductions for contributory negligence and apportionment between defendants apply only to those heads of loss. Damages may be assessed on a 'no transaction' basis if evidence supports the claimant would have done nothing absent the contravention. In this case, the court set aside the primary judgment and substituted apportioned amounts reflecting each...

Court Disposition

Appeal and cross-appeal allowed in part; primary orders set aside; substituted orders for apportioned judgment sums; parties to be heard on further orders and costs.

Orders

  • ['Appeal by Wealthsure Pty Ltd and Mr David Bertram allowed.' 'Cross-appeal by Mr Peter Maurice Townley allowed.' "Primary judge's order set aside and substituted with: (i) Judgment for the plaintiffs against the first and second defendants in the sum of $875,506.80; (ii) Judgment for the plaintiffs against the...