Concurrent wrongdoers: when is loss and damage the same?

Mitchell Morgan Nominees Pty Ltd & Anor v Vella & Ors [2011] NSWCA 39

The NSW Court of Appeal has confirmed that concurrent wrongdoers must be liable to a claimant for the same loss and damage in order for the proportionate liability provisions of the Civil Liability Act (NSW) ('CLA') to apply.

The Court found that a lender's loss caused by its solicitors' negligent drawing of a mortgage was not the same as its loss caused by the fraudsters who had falsely procured the mortgage. Accordingly, the solicitors and the fraudsters were not concurrent wrongdoers. The solicitors could therefore not rely on Part 4 of the CLA. This is even though the amount of compensatory damages able to be sought against the solicitors and the fraudsters may have been the same.