Burke v LFOT Pty Limited [2002] HCA 17

HIGH COURT OF AUSTRALIA

GAUDRON ACJ,

McHUGH, KIRBY, HAYNE AND CALLINAN JJ

WILLIAM ROBERT BURKE & ANOR APPELLANTS

AND

LFOT PTY LIMITED & ORS RESPONDENTS

Burke v LFOT Pty Limited [2002] HCA 17

18 April 2002

S130/2001

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Full Court of the Federal Court made on 18 August 2000 and in its place order that:

(a) the appeal to that Court is allowed with costs;

(b) set aside Order 2 of Moore J made on 11 November 1999 and in its place order that the cross‑claim is dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

G J McVay for the appellants (instructed by Gilbert Mane Solicitors)

B W Walker SC with P T Taylor for the first and second respondents (instructed by Horowitz & Bilinsky)

No appearance for the third respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Burke v LFOT Pty Limited

Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another's misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.

Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another's representation where the loss could have been avoided by careful advice by the solicitor.

Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.