Prentice & Carmody as trustees for the Carmprent Unit Trust & Anor v AGL Sales Pty Ltd & Ors  QSC 154
As section 74B of the Trade Practices Act 1974 (Cth) does not impose a duty but creates a statutory right, the party alleged to be in breach cannot make a claim for contribution.
Anthony Prentice and John Carmody (trustees for Carmprent Unit Trust) (plaintiffs) owned a hotel, parts of which were destroyed in a fire on 9 November 2010. The plaintiffs alleged the fire was started by a faulty 'Smart Meter' (electrical device) that was manufactured and supplied by Landis & Gyr Pty Ltd (second defendant). The plaintiffs sought damages against the second defendant for the supply of unsuitable goods pursuant to section 74B of theTrade Practices Act 1974 (Cth) (TPA).
Pursuant to section 6 of the Law Reform Act 1995 (Qld) (LRA), the second defendant filed a notice of contribution on Formway Group Metering Pty Ltd (third defendant) (which had advised the plaintiffs not to do anything in respect of the burning smell given off by the Smart Meter) and Energex Limited (fourth defendant) (which had installed the Smart Meter) claiming contribution in respect of any liability in damages.
The third and fourth defendants applied to have the notices of contribution struck out. They contended that the second defendant was not a 'tortfeasor' within the meaning of the LRA and in respect of all of the claims which were not 'apportionable' pursuant to the Civil Liability Act 2003 (Qld) (CLA). Further, if the second defendant was a tortfeasor, it was not entitled to indemnity or contribution from the third or fourth defendants as no tortfeasors could be made liable in respect of the 'same damage'.
Martin J held that there was no basis for the notices of contribution and struck them out.
In reaching this decision, His Honour held that section 74B of the TPA could not be classified as tortious, as it did not impose a duty and no conduct was prohibited. Further, the right to claim damages did not rest upon any breach of a duty.
His Honour also held that application of section 74B of the TPA to the damage suffered by the plaintiffs, was of a different character to the damage allegedly caused by the third and fourth defendants. The remedy available was statutory, which did not have the same limitations as the relief available in a negligence action.
His Honour also found that although the claims in negligence were 'apportionable claims', the provisions of the CLA prevented the contribution sought by the second defendant.