Latol Pty Limited v Gersbeck [2015] NSWSC 1631

Supreme Court New South Wales

Medium Neutral Citation: Latol Pty Limited v Gersbeck [2015] NSWSC 1631 Hearing dates: 11-14 August 2015 Date of orders: 18 November 2015 Decision date: 18 November 2015 Jurisdiction: Common Law Before: Hamill J Decision: (1) Judgment for the plaintiff. (2) The damages are to be reduced by 20% pursuant to s 12GF(1B) of the Australian Securities and Investments Commission Act 2001 (Cth). (3)The parties are directed to attempt to reach agreement as to the quantum of damages and appropriate orders as to costs. (4) If agreement is not reached in accordance with (3) above, the parties are directed to file with my Associate schedules in which the different methods of calculating the plaintiff's loss are clearly articulated. (5) The case is adjourned until 27 November 2015 for mention when, if necessary, a further timetable will be set for submissions concerning the quantum of damages. Catchwords: CIVIL LAW – misleading or deceptive conduct –financial services – whether conduct caused plaintiff's loss – concurrent wrongdoers – apportionment of liability – whether statutory provisions in ASIC Act applied – whether "apportionable claim" under Act – where plaintiff failed to take reasonable care – reduction in damages – whether defendant's conduct fraudulent – whether fraud pleaded properly or at all Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Cases Cited: ACCC v Dukemaster [2009] FCA 682 Banque Commercial SA v Akhil Holdings [1990] HCA 11; 169 CLR 279 BHPB Freight Pty Ltd v Cosco Oceanic Chartering (No 3) [2009] FCA 1087 Davy v Garrett (1877) 7 ChD 473 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 I & L Securities v HTW Valuers [2002] HCA 41; 210 CLR 109 Khoury v Sidhu [2011] FCAFC 71 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285 Perpetual Trustee v Milanex (In Liquidation) [2011] NSWCA 367 Selig v Wealthsure Pty Ltd [2015] HCA 18 Suncoast Pastoral Company v Coburg AG (No 2) Pty Ltd [2012] QSC 157 Category: Principal judgment Parties: Latol Pty Limited (Plaintiff) Robin Gersbeck (Defendant) Representation: Counsel: M Avenell (Plaintiff) P Fagan (Defendant)