Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184

Andrew Hales, Amy Ryan, Will Ryan

Key takeouts

A defendant cannot simply identify third parties who may be concurrent wrongdoers, nor point to a class of persons one or more of whom may be concurrent wrongdoers, in order for a claim to be apportionable.  Rather, a defendant’s pleadings must identify the concurrent wrongdoers (including disclosing the relevant cause of action and damage) with the same specificity required of an initiating process.

If a defendant is unable to identify concurrent wrongdoers with the required specificity, and cannot conduct further fact finding activities against those purported concurrent wrongdoers, it should not plead that the plaintiff’s claim is apportionable.

Facts

GC Group Company Pty Ltd (GC Group) was a subcontractor in a large residential development project.  GC Group purchased recycled aggregate (a building material used in concrete and the construction of roads and retaining walls) from at least one of Bingo Holdings Pty Ltd, Bingo Recycling Pty Ltd, Bingo Waste Services Pty Ltd and Wollongong Recycling (NSW) Pty Ltd who were the concurrent wrongdoers (collectively, the applicant).

GC Group alleged that the recycled aggregate supplied by the applicant was contaminated and that by using the contaminated aggregate in construction GC Group suffered loss and damage because it was obliged to carry out substantial reconstruction work at its own cost.

GC Group alleged that the applicant was liable for breach of contract, breach of the consumer guarantees in the Competition and Consumer Act 2010 (Cth) (ACL) and for engaging in misleading or deceptive conduct contrary to section 18 of the ACL.

The applicant sought to establish that GC Group’s claim against them was an ‘apportionable claim’ for the purpose of section 34 of the Civil Liability Act 2002 (NSW). The court refused to grant leave and an appeal was made to the Court of Appeal.

When seeking leave to appeal, the applicant asserted that the claim was apportionable because the contaminated aggregate delivered to GC Group was initially supplied by one or more of 710 customers of the applicant, or alternatively, because it was sourced from a stockpile the applicant had acquired when purchasing the businesses. The applicant submitted that each of those entities ‘may’ be a concurrent wrongdoer ‘to the extent’ that the contamination came from the recycled aggregate supplied to the applicant by any of them (although did not, and submitted it was not required to, plead that any one or more of those people ‘was’ a concurrent wrongdoer). 

The parties agreed that the contract claim and the consumer guarantee claim were not apportionable, and accordingly that the apportionment claim could only succeed for the misleading and deceptive conduct claim.

Decision

The matter was dismissed on the basis that the misleading and deceptive conduct claim was brought under federal law (the ACL).  The applicant incorrectly argued that the claim was apportionable using NSW legislation (the CLA). 

However, even if pleaded using federal law, the applicant’s claim would have been dismissed because it was not pleaded with enough specificity.  It is insufficient for a defendant to simply identify that a party ‘might’ have caused the loss, or was in a class of individuals one or more of whom may be concurrent wrongdoers.

The court referred to the case of Ucak v Avante Developments Pty Ltd [2007] NSWSC 367,that a defendant asserting that a claim is apportionable must plead the following elements:

• the existence of a particular person;
• the occurrence of an act or omission by that particular person; and
• a causal connection between that occurrence and the loss that is the subject of the claim.

A defendant pleading a proportionate liability defence must plead in a manner that discloses the cause of action and damage in at least as detailed a manner as would be required for any initiating process for a cause of action. Without this, the claim will not succeed.