WealthSure case may strengthen client lawsuits

The High Court has allowed an appeal of a May 2014 decision of the Federal Court which apportioned liability for losses suffered by Ronald and Janna Selig following advice given by a WealthSure adviser.

The nation’s highest court ruled that claims based on breaches of section 1041E are not apportionable, which top-tier law firm King & Wood Mallesons said may have significant implications for litigation involving finance companies.

“[Plaintiffs will be able to act] safe in the knowledge that while the statutory apportionment and contributory negligence defences are applicable ... to establish statutory misleading or deceptive conduct claims, those defences will not ‘infect’ parallel statutory claims, even where the same loss is alleged,” Mr Forbes said.

“Accordingly, the apportionment and contributory negligence defences will be practically irrelevant unless the plaintiff succeeds only on their misleading or deceptive conduct or common law negligence claim."

The losers will be defendants in commercial litigation in Australia generally, Mr Forbes said.

“In particular, financial services providers and others with exposure to statutory liability for false or misleading statements in relation to financial services or products [will be affected],” he added.