Zervas v Burkitt (No 2) [2019] NSWCA 236

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zervas v Burkitt (No 2) [2019] NSWCA 236 Hearing dates: 10 September 2019 Date of orders: 26 September 2019 Decision date: 26 September 2019 Before: Bell P at [1]; Macfarlan JA at [73]; McCallum JA at [74] Decision: 1. Appeal be allowed in part.

2. Order 1 of the orders made by Levy SC DCJ on 2 November 2018 be varied so as to delete the reference to the second defendant.

3. Order a verdict and judgment for the plaintiff against the second defendant in the sum of $119,135.96.

4. Order 3 of the orders made by Levy SC DCJ on 2 November 2018 be set aside and in lieu thereof order that the first and second defendants are jointly and severally liable to pay the plaintiff's costs of the proceedings at first instance on the ordinary basis.

5. The appellant pay 80% of the cost of the appeal. Catchwords: APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability Legislation Cited: Civil Liability Act 2002 (NSW) Pt 4, s 34 Competition and Consumer Act 2010 (Cth) Pt VIA, s 87CB; Pt XI, s 131; s 140, Sch 2 Australian Consumer Law ss 1, 18, 236 Fair Trading Act 1987 (NSW) ss 28, 32 Cases Cited: ACCC v Michigan Group Pty Ltd [2002] FCA 1439 Central Darling Shire Council v Greeney [2015] NSWCA 51 Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Tort Reports 81-731 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 LM Investment Management Limited (In Liquidation) (Receivers appointed) v BMT & Assoc Pty Limited [2015] NSWSC 1902 Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; 65 MVR 578 Nominal Defendant v Bacon [2014] NSWCA 275; 67 MVR 425 Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354 Porges v Adcock Private Equity Pty Ltd [2019] NSWCA 79 Category: Principal judgment Parties: Fotis Zervas (Appellant) Miles Burkitt (First Respondent) Michael Amro (Second Respondent) Ultimate Car Rentals Australia Pty Limited (In Liq) (Third Respondent) Representation: Counsel: T Castle and D Edney (Appellant) C P O'Neill (First Respondent)