In St.George Bank Limited v Quinerts Pty Ltd  VSCA 245,
the Victorian Court of Appeal undertook a level of analysis that
has not been undertaken previously in determining when a party will
be a concurrent wrongdoer for the purposes of the proportionate
liability regime. The Court acknowledged that its conclusion was at
odds with the decision in Vella v Permanent Mortgages Pty Ltd
 NSWSC 505 but not with the decision in Chandra v Perpetual
Trustees Victoria Ltd (2007) ANZ ConvR 481 (both New South Wales
Supreme Court decisions). The Victorian decision is a troubling one
and, if applied in New South Wales, has the potential to
significantly limit a defendant's ability to contend
successfully that a third party is a concurrent wrongdoer.
In Quinerts, St.George brought a claim against a valuer alleging
that it suffered loss as a result of the valuer's overvaluation
of a property. The valuer contended that the borrower and the
guarantor were concurrent wrongdoers. The Court of Appeal concluded
that in order to seek contribution from another wrongdoer, that
person must be liable for the same damage as the damage that is the
subject of the plaintiff's claim.
The Court held that the loss or damage caused by the valuer was
not the same as that caused by the borrower or the guarantor. The
loss caused by the valuer was to cause the bank to accept
inadequate security from which to recover the loan whereas the loss
caused by the borrower and the guarantor was their failure to repay
The Vella and Chandra cases both concerned mortgage fraud. In
each case, the New South Wales Supreme Court found that the
solicitors and the fraudster were concurrent wrongdoers.
The Victorian Court of Appeal disagreed with the reasoning in
Vella. In its view, the loss caused by the solicitors was the loss
occasioned by their failure to draw a mortgage effectively whereas
the loss caused by the fraudster was the loss that comprised the
lender parting with its money.
However, the decision in Chandra was not inconsistent. The Court
of Appeal said that the loss or damage caused by the solicitors
(whose negligence allowed the fraudster to obtain a certificate of
title to commit the fraud) and the loss or damage caused by the
fraudster was the same; it was the loss which resulted from the
lender making a loan it would not otherwise have made.
If the Victorian decision is followed in New South Wales, the
precise nature of the loss or damage that is the subject of the
plaintiff's claim will be a critical factor. Only if the third
party is (or would be) liable to the plaintiff for the same loss as
the loss that is the subject of the plaintiff's claim can the
third party be a concurrent wrongdoer.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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