DAMAGES — apportionment — where Second Defendant was a director and the Chief Executive Officer of Third Defendant — whether loss should be apportioned as between Second and Third Defendants — the extent of each Defendant’s responsibility for Plaintiffs’ loss
COSTS — whether Defendants should be jointly and severally liable for Plaintiffs’ costs or whether costs should be apportioned
Quick Take
1Where a company's contravention of s 12DA of the ASIC Act arises solely from the acts of its sole director and controlling mind, there is no apportionment of liability between the company and that director under s 12GR, either because they are not 'concurrent wrongdoers' within s 12GP(3) or because it is just to hold each liable for 100% of the relevant share, following Tomasetti v Brailey and Robinson v 470 St Kilda Road Pty Ltd.
2In assessing apportionment under s 12GR of the ASIC Act, the determinants of 'responsibility' are blameworthiness and causal potency; a party who knowingly created and distributed a misleading document bears significantly greater responsibility than a party who innocently forwarded it without understanding its falsity.
3Where proportionate liability claims against multiple defendants arise from a common substratum of facts, joint and several costs orders remain appropriate notwithstanding the apportionment of damages, because the whole of the plaintiff's costs were incurred in proving the case against each defendant.
