Mitchell Morgan Nominees Pty Limited v Vella [2011] NSWCA 390
In our March 2012 update, we reported on the New South Wales Court of Appeal's decision in Mitchell Morgan Nominees Pty Limited v Vella [2011] NSWCA 390 (Vella), in which the Court of Appeal clarified the operation of the proportionate liability regime pursuant to Part 4 of the Civil Liability Act 2002 (NSW) (CLA). For the facts of that case, please see our previous article.
In its decision, the Court of Appeal considered that, for the proportionate liability provisions of the CLA to apply in an apportionable claim, the concurrent wrongdoers must have caused the same loss or damage, with Giles JA distinguishing between "damage" and "damages". The court held that the actions of the fraudsters did not contribute to the same loss and damage as the negligent actions of the solicitors in preparing the mortgage documents. Hence they were not concurrent wrongdoers.
On 7 September 2012, the High Court granted Special Leave to appeal this decision, with Senior Counsel for the negligent solicitors arguing that the Court of Appeal's approach was one of form over substance, and that the Court of Appeal failed to provide a principled basis for distinguishing the two losses.
The appeal will be watched closely, as the provisions of the CLA are similar to other proportionate liability legislation throughout Australia. We will report further once the High Court's decision has been handed down.
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