Cam & Bear Pty Ltd v McGoldrick [2018] NSWCA 110

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cam & Bear Pty Ltd v McGoldrick [2018] NSWCA 110 Hearing dates: 16 March 2018 Decision date: 23 May 2018 Before: McColl AP at [1]; Macfarlan JA at [2]; White JA at [107] Decision: (1) Note that the Court will in due course make orders allowing the appeal and entering judgment for the appellant. (2) Direct that the parties attempt to agree upon the amount of damages to be awarded to the appellant. (3) Direct that within 21 days of this judgment the parties file and serve draft orders that they submit should be made to give effect to the terms of this judgment. Catchwords: NEGLIGENCE – breach of duty by auditor of self-managed superannuation fund – negligence in failing to identify and report doubts as to recoverability of assets described in financial statements as cash – primary judge erred in failing to have regard to the breadth of the appellant's case – breach of duty caused loss

NEGLIGENCE – contributory negligence – appellant lacked financial sophistication – respondent auditor engaged to prevent the kind of loss that occurred – appellant's damages reduced by 10% for its contributory negligence

NEGLIGENCE – proportionate liability – claim against superannuation fund's auditor – damages of appellant not reduced by reason of directors' concurrent liability to the appellant – the same acts of the directors resulted in the appellant's damages being reduced for its contributory negligence – to permit both reductions would result in a double deduction for the same acts

NEGLIGENCE – proportionate liability – claim against superannuation fund's auditor – company which compiled the fund's financial statements not proved to be also liable to appellant – no evidence as to the basis on which the company was engaged Legislation Cited: Australian Consumer Law (NSW), s 236 Australian Securities and Investment Commission Act 2001 (Cth), s 12GF Civil Liability Act 2002 (NSW), ss 5D(3), 5R, 34, 35 Fair Trading Act 1987 (NSW), s 68 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 Daniels v Anderson (1995) 37 NSWLR 438 Duke Group Ltd (in liq) v Pilmer (No 2) (2000) 78 SASR 216; [2000] SASC 418 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 T & X Company Pty Ltd v Chivas [2014] NSWCA 235; (2014) 67 MVR 297 Wingecarribee Shire Council v Lehman Brothers Australia Ltd (ACN 066 797 760) (in liq) [2012] FCA 1028; (2012) 301 ALR 1 Texts Cited: D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018) Category: Principal judgment Parties: Cam & Bear Pty Ltd (Appellant) John McGoldrick (Respondent) Representation: Counsel: D L Cook SC (Appellant) C R C Newlinds SC / P A Horvarth (Respondent)