A plaintiff cannot defeat the proportionate liability regime by framing a claim under specific statutory provisions (such as s 12 of the FTA or s 12DB of the ASIC Act) rather than the general misleading or deceptive conduct provisions that trigger the apportionable claim definition, where the same conduct in fact contravenes the trigger provision. A contractual claim based on breach of a duty of 'due skill and diligence' is at least arguably an apportionable claim arising from a failure to take reasonable care under s 24AF(1)(a) of the Wrongs Act 1958 (Vic). Joinder of a company in liquidation as a defendant for apportionment purposes may not constitute beginning a proceeding against it within the meaning of s 471B of the Corporations Act.
The full text is available to signed-in members, including the 19 later cases that cite this judgment.
3 of the 19 citing cases carry a classified treatment. How each court treated it is available to signed-in members.