Godfrey Spowers (Victoria) Pty Ltd v Lincolne Scott Australia Pty Ltd & Ors

(2008) 21 VR 84; [2008] VSCA 208

Victorian Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Contribution
3. › Proportionate liability
4. › Inter-relationship between contribution and proportionate liability regimes
5. › Whether concurrent wrongdoer who settles apportionable claim may claim contribution
6. › Whether Part IVAA operates upon judgment or upon pleading
7. › Wrongs Act 1958 (Vic), Parts IV and IVAA, ss 23B, 24AI, 24AJ, 24AO
1. Practice and Procedure
2. › Summary judgment
3. › Whether contribution claim doomed to failure
4. › Whether summary judgment appropriate where proportionate liability and contribution regimes interact
5. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 23.01

Quick Take

A concurrent wrongdoer who settles an apportionable claim under Part IVAA of the Wrongs Act 1958 (Vic) is not precluded from claiming contribution under Part IV against other concurrent wrongdoers in respect of the settlement sum. Part IVAA operates upon judgment, not upon pleading or settlement; a person does not become a 'concurrent wrongdoer' for the purposes of Part IVAA merely because an apportionable claim has been pleaded. The 'factual basis of the claim' for s 23B(4) purposes is the plaintiff's claim, not the defendant's defences or third party allegations. Settling defendants should consider structuring settlements to procure the release of other potential concurrent wrongdoers to support contribution claims.