Zervas v Burkitt (No 2)

[2019] NSWCA 236

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Consumer Law
2. › Australian Consumer Law
3. › Misleading or deceptive conduct
4. › Accessorial liability
5. › Knowing involvement
6. › Representation as to future conduct
7. › Whether director knowingly involved in corporate contravention
8. › Whether representor had reasonable grounds for representation as to future matter
9. › Australian Consumer Law (NSW), s 18; Competition and Consumer Act 2010 (Cth), Sch 2
1. Consumer Law
2. › Australian Consumer Law
3. › Operation as Commonwealth law and State law
4. › Whether ACL claim against natural person for involvement in contravention is claim under ACL (Cth) or ACL (NSW)
5. › Whether State proportionate liability regime applies
6. › Competition and Consumer Act 2010 (Cth), s 131; Fair Trading Act 1987 (NSW), ss 28, 32; Civil Liability Act 2002 (NSW), s 34
1. Damages
2. › Mitigation of loss
3. › Failure to accept insurance settlement offer
4. › Whether offer capable of acceptance was made
5. › Whether rejection of offer was unreasonable
6. › Onus on party raising mitigation defence
1. Practice and Procedure
2. › Pleadings
3. › Determination of liability on causes of action not pleaded
4. › Whether judgment can be upheld on notice of contention on basis of cause of action actually pleaded

Quick Take

Practitioners bringing accessorial liability claims against natural persons for involvement in ACL contraventions should note that such claims are brought under the ACL (NSW) (or equivalent State application law), not the ACL (Cth), with the consequence that State proportionate liability regimes apply.