Amaca Pty Limited formerly known as James Hardie & Coy Pty Limited v CSR Limited - [2001] NSWSC 324

No judgment structure available for this case.

CITATION: Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd v CSR Ltd [2001] NSWSC 324

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 50053/1999

HEARING DATE(S): 9, 10, 11, 18 and 19 April 2001

JUDGMENT DATE:
7 May 2001

PARTIES :

Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd (Plaintiff)
CSR Ltd (Defendant)

JUDGMENT OF: Bergin J

COUNSEL : CG Gee QC/TGR Parker (Plaintiff)
PW Taylor SC/JE Fernon (Defendant)

SOLICITORS: Allen Allen & Hemsley (Plaintiff)
Toomey Pegg Drevikovsky (Defendant)

CATCHWORDS: [DEEDS] - Construction - Release in Deed of partnership dissolution - Whether Release includes claim for contribution for damages awarded to end users of asbestos products produced by partnership in claim brought many years later in which only one partner is sued - Cautionary principle to be applied in approach to construction. [EQUITY] - If such claim is included in Release, whether in fairness and equity the releasee is entitled to rely upon it.

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Partnership Act 1892 (NSW)

CASES CITED: Bank of Credit and Commerce International SA (In Liquidation) v Ali & Ors [2001] 1 All ER 961
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
Cloutte v Storey (1911) 1 Ch 18
Cole v Gibson (1750) 1 Ves. Sen. 503; 27 ER 1169
General Accident Fire and Life Assurance Corporation Ltd v Midland Bank Ltd [1940] 2 KB 388
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Investors Compensation Scheme Ltd v West Bromwich Building Society (1998) 1 All ER 98
Lindo v Lindo (1839) 1 Beav. 496; 48 ER 1032
Lyall v Edwards (1861) 6 H & N 337
Malik v Bank of Credit and Commerce Internation SA (In liq); Mahmud v Bank of Credit and Commerce International SA (In liq) [1997] 3 All ER 1; [1998] AC 20
MMI General Insurance Ltd v Baktoo (2000) 48 NSWLR 605
Morgan Equipment Company & Ors v Rodgers [No.2] (1993) 32 NSWLR 467
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Ramsden v Hylton (1751) 2 Ves Sen 304; 28 ER 196
Salkeld v Vernon (1758) 1 Eden 64; 28 ER 608
Turner v Turner (1880) 14 Ch D 829
Wickman Tools Sales Limited v F.L. Schuler A.G. [1974] AC 235

DECISION: Release in Deed not a bar to plaintiff bringing proceedings.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

DATE 7 MAY 2001

50053/1999 - AMACA PTY LTD formerly known as JAMES HARDIE & COY PTY LTD v CSR LIMITED

JUDGMENT

1 This litigation involves the construction of a release in a Deed of Partnership Dissolution (the Deed) executed by the plaintiff, then known as James Hardie & Coy Pty Ltd (James Hardie) and the defendant, CSR Ltd (CSR) on 26 June 1974.

2 James Hardie and CSR entered into a partnership in 1964, the business of which manufactured and distributed insulation products under the name “The Hardie BI Company” (Hardie BI). The partnership was constituted by a Deed dated 24 September 1964 between James Hardie, CSR and Bradford Insulation Industries Pty Ltd (Bradford) (the Principal Deed). Bradford was appointed as the sole selling and distributing agent of the Hardie BI products.

3 The partnership endured for ten years during which it manufactured and distributed various products which contained asbestos. These products were used in the construction industry in the 1960’s and 1970’s. Workers who were exposed to asbestos products, including those manufactured and distributed by the partnership, are making and will in the future make claims against manufacturers for damages for personal injury caused by such exposure. In the cases involving exposure to Hardie BI products the claims have been made against James Hardie and not CSR. The proceedings have been brought in the Dust Diseases Tribunal of NSW (the Tribunal).

4 In each of the claims against James Hardie in the Tribunal, James Hardie has filed a Cross Claim against CSR seeking contribution from CSR under the Partnership Act 1892 (NSW) (the Partnership Act) and the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the LR Act). It has been the practice of the Tribunal to hear the claims for damages and adjourn the Cross Claims for hearing on a date to be fixed. There were approximately 110 of those cases in the Tribunal at the time of this hearing.

5 In July 1995 proceedings were commenced in the Tribunal by Joseph Welch against James Hardie, amongst others (the Welch proceedings). James Hardie defended those proceedings and on 3 September 1997 judgment was entered as against James Hardie in the amount of $81,250 which included James Hardie’s contribution to Mr Welch’s costs.

6 It is agreed that:

· Mr Welch suffered injury from asbestos fibre emanating from products manufactured by the partnership in the proportion that the amount of the asbestos fibre that he inhaled from those products bears to the total amount of asbestos fibre which he inhaled;

· A portion of Mr Welch’s injury and loss resulting from asbestosis was caused by his exposure to asbestos dust and fibre emanating from Hardie BI products;

· The judgment entered against James Hardie related, as to the sum of $60,000, to a partnership liability to Mr Welch; and

· James Hardie reasonably incurred legal costs of $60,000 in defending the Welch proceedings.

7 When the first claims were made in the early 1980’s, James Hardie claimed indemnity under policies of insurance held with QBE. QBE denied liability. By Deed dated 17 April 1985 a temporary arrangement was entered into between James Hardie and QBE known as the Standstill Agreement. Consistently with the Standstill Agreement James Hardie notified its brokers Minet Australia and made a claim for indemnity upon QBE when the Welch proceedings were commenced. James Hardie received no payment from QBE in respect of the Welch proceedings under the Standstill Agreement.

8 However James Hardie and others (the James Hardie Group) entered into a Deed with QBE and others (the QBE Group) on 30 June 2000 (the QBE Deed). Pursuant to the QBE Deed, QBE paid James Hardie the sum of $500,000 in full and final settlement of, inter alia, all claims against QBE Group by James Hardie Group for any interest under or in relation to the Hardie BI policy of insurance. It is agreed that $5,000 of that $500,000 relates to James Hardie’s rights against QBE in respect of the Welch proceedings.

9 The parties’ joint purpose in bringing these proceedings is to obtain rulings which will have the effect of resolving the issues between them as they relate to all the Hardie BI product claims, pending and future, in the Tribunal. A preliminary jurisdictional question was raised on the first day of the trial. That is the subject of my judgment delivered on 10 April 2001 in which I held that this Court has jurisdiction to hear these proceedings.

10 Subject to the issues to be decided, it is conceded by CSR that James Hardie has an entitlement to 50% contribution from CSR in respect of the Welch proceedings by reason of the coordinate liabilities of James Hardie and CSR under the Partnership Act and the LR Act.

11 These proceedings were heard on 9, 10, 11, 18 and 19 April 2001. Mr CG Gee QC, leading Mr TGR Parker of counsel, appeared for James Hardie. Mr PW Taylor SC, leading Mr JE Fernon of counsel, appeared for CSR.

Issues for Decision

12 The issues for decision are:

1. Whether clause 8 of the Deed operates so as to bar claims between James Hardie and CSR for contribution under the Partnership Act or under the LR Act towards the amount paid to Mr Welch: ( the Release issue).

2. Whether James Hardie is entitled to contribution from CSR towards James Hardie’s own costs of defending the Welch proceedings and if so whether clause 8 of the Deed operates so as to bar claims for those costs: (the Costs issue).

3 If James Hardie is not barred by clause 8 of the Deed whether the $5,000 received by James Hardie from QBE is to be taken into account in the calculation of the contribution otherwise recoverable from CSR: (the Insurance issue).

The Principal Deed

13 Subject to the completion of the sale of certain assets to the partnership and the vesting of title in the partners, James Hardie and CSR agreed to form the partnership to commence and operate from 28 September 1964, the business of which was to be known as and conducted as the Hardie BI Company (Div 1 and Div 2).

14 The original capital contribution of the partnership was £500,000 and further capital requirements of the business were to be contributed equally by the partners or in such other proportions as they may from time to time agree. The profits of the business were shared by the partners according to the proportion of the total capital each partner had provided (Div 3).

15 The partners agreed that the business of the partnership was to manufacture in Australia and distribute and sell in Australia and elsewhere certain products including the product known as K-Lite-Calcium Silicate, sections or blocks and asbestos millboard. The partners agreed to restraints upon their activity during the partnership (Div 4).

16 The parties agreed that they would “mutually” determine the conduct of the partnership business and the policy, management and control thereof. Except as the partners may mutually agree and subject to their mutual directions the general management control of the partnership business vested in a Partnership Committee. The day to day management of the partnership was to be conducted by James Hardie subject to the joint direction of the partners and the Partnership Committee (Div 5 Part 1).

17 The Partnership Committee consisted of six people, three appointed by each of the partners, with a Chairman and a Deputy Chairman each of whom would hold office for a term of one year. The Committee was to meet monthly or at such other intervals as the partners from time to time determined and was required to keep Minutes. Subject to any mutual determination or direction of the partners the Partnership Committee had “full power and authority to do and authorise to be done all such acts, matters or things as might be done by the partners either jointly or severally in connection with the partnership business unless otherwise provided” under the Deed (Div 5).

18 The partners agreed to indemnify the members of the Partnership Committee. Clause 7 of Part II of Division 5 provided:

The partners hereby indemnify and agree to keep indemnified the members of the Partnership Committee and each of them against all actions claims suits proceedings and demands whatsoever made or brought against the members or any one or more of them by any third party unless resulting from or arising from negligence of the members or such one or more of them or from some act matter or thing done or omitted to be done outside any authority conferred on the members or such one or more of them by the partners or by this Deed.

19 James Hardie was appointed as Managing Agent to manage and control the partnership business subject always to the control and directions of the partnership and of the Partnership Committee (Div 6). The rights, obligations and powers of James Hardie in such management was set out in clause 1 of Division 6 of the Principal Deed. The partners indemnified James Hardie in respect of its management in the following terms:

4. Subject to the covenant and warranty given by James Hardie in Clause 5 of this Division the partners jointly hereby indemnify and agree to keep James Hardie indemnified from and against all actions suits proceedings claims and demands whatsoever made or brought against James Hardie by any third party in respect of or arising out of any act by James Hardie as managing agent.

20 Division 7 of the Principal Deed dealt with sales and sales policy including the appointment of Bradford as the sole selling and distributing agent for the products described in the Principal Deed. The rights and powers of Bradford as the agent were set out in Division 7 Clause 2 of the Principal Deed. The indemnity provided to Bradford was in the following terms:

10. The parties jointly hereby indemnify and agree to keep Bradford Insulation indemnified from and against all actions, suits proceedings claims and demands whatsoever made or brought against Bradford Insulation by any third party in respect of or arising out of the use of the products sold by Bradford Insulation, provided however that the use of the products out of which any such claim may have arisen has been strictly in accordance with any written technical recommendations made by the partnership in that regard. Bradford Insulation shall refer to the Partnership Committee before settlement all claims exceeding £50.0.0.

21 Clause 8 of Division 9 provided that the terms and conditions of the Deed operated as covenants between the partners and that each was entitled to maintain an action for damages for breach or to claim an injunction to restrain a breach of such terms and conditions.

The Deed of Partnership Dissolution

22 The Deed was executed on 26 June 1974. It was agreed in the proceedings that the date of dissolution was 15 November 1974. The Deed recited that the partners had agreed to cease the manufacture of the Hardie BI products on or before 30 June 1974. It was also recited that the partners desired to amend the Principal Deed to give the Partnership Committee the power and authority to terminate the partnership. Bradford was also a party to the Deed, it being recited that it had joined in the Deed to consent to the termination of its appointment as sole selling and distributing agent.

23 The parties agreed that where there was any conflict between this Deed and the Principal Deed, this Deed was to prevail (cl. 10). Bradford agreed that the provisions of Division 7 of the Principal Deed, appointing it as the sole selling and distribution agent, determined on the date of dissolution of the partnership (cl 4). The partners agreed that from the date of dissolution no one was entitled to use the name Hardie BI company (Cl 5).

24 The relevant Clauses for construction in this litigation are Clauses 8 and 9 which are set out in full below:

8. As and from the date of dissolution James Hardie, CSR and Bradford Insulation, by their execution hereof agree that the Partnership will be at an end, that all rights, duties and obligations of all the parties under the Principal Deed or any of them shall then cease and further that subject to Clause 9 hereof James Hardie, CSR and Bradford Insulation jointly and severally release the other parties and either of them from all such actions, causes of action, demands or claims which any of them has had or but for this Deed might have had against the others or either of the others. By way of clarification to this clause and not otherwise, James Hardie, CSR and Bradford Insulation shall as from the date of dissolution not be bound by Clause 2 of Division 4 of the Principal Deed.

9. Notwithstanding clause 8 hereof, James Hardie and CSR as from the date of dissolution will jointly hereby indemnify and agree to keep Bradford Insulation indemnified from and against all actions suits proceedings claims and demands whatsoever made or brought against Bradford Insulation by any third party whether before or after the date of dissolution in respect of or arising out of the use of the products acquired from the partnership and sold by Bradford Insulation provided that:

(i) the use of the products out of which any such claim may have arisen has been strictly in accordance with any written technical recommendations made previously by the partnership in that regard; and

(ii) Bradford Insulation has on or before the 30th June 1975 given written notice to James Hardie and CSR of any such claim.

The Release Issue

25 Clause 8 deals with a number of matters. The first is that James Hardie and CSR and, to whatever extent necessary Bradford agree that by the execution of the Deed the partnership will be at an end. The second matter is that James Hardie, CSR and Bradford agree that by their execution of the Deed all their rights, duties and obligations under the Principal Deed are at an end.

26 The third matter is a “further” agreement that, subject to Clause 9 James Hardie, CSR and Bradford jointly and severally release each other from:

all such actions, causes of action, demands or claims which any of them has had or but for this Deed might have had against the others or either of the others. (Cl 8)

27 The last sentence of the Clause which deals with the purported “clarification” to the Clause is that James Hardie, CSR and Bradford from the “date of dissolution” will not be bound by Clause 2 of Division 4 of the Principal Deed. That is a Clause dealing with a restraint on the partners during the partnership. In this case James Hardie was to continue the business after the end of the partnership, from the date of dissolution. It is apparent from this Clause that between the date of execution of the Deed and the date of Dissolution, 15 November 1974 the partners remained bound by the restriction contained in the Principal Deed.

28 Clause 9 is relied upon by both parties to give meaning to the words in Clause 8. By this Clause “notwithstanding Clause 8 hereof” James Hardie and CSR agreed that “as from the date of dissolution” they jointly indemnified Bradford and agreed to keep Bradford indemnified from and against:

all actions suits proceedings claims and demands whatsoever made or brought against Bradford Insulation by any third party whether before or after the date of dissolution in respect of or arising out of the use of the products acquired from the partnership and sold by Bradford Insulation.

29 In dealing with this issue, it is important to identify the nature of the claim in the Welch proceedings and the nature of the claim brought by James Hardie against CSR in these proceedings.

30 The plaintiff submitted that the liability in the Welch proceedings arose from a claim of a kind first brought in Australia by Mr Baker in 1982. This was apparently the first time a claim had been brought against any manufacturer or supplier of goods containing asbestos. The Welch proceedings were brought against one partner only for liability in respect of a product manufactured sold or distributed by both partners through their agent.

31 The plaintiff submitted that the claim by James Hardie against CSR in the present proceedings does not arise from any express agreement between the parties and that the liability of CSR to contribute exists by operation of law rather than as a result of any agreement. However that operation of the law applies to the partners by reason of their entry into the partnership.

32 It is submitted that the claim has arisen because the liability has fallen solely on one partner and was an unforseen circumstance at the time of the execution of the Deed in 1974.

33 To ascertain the true purpose of the Release it is necessary to read the terms of the Deed as a whole, giving the words their natural and fair meaning in the context of the Deed, the parties’ relationship and the relevant circumstances or facts known to the parties at the time of the execution of the Release. I turn now to the surrounding circumstances.

Surrounding circumstances

34 On 29 February 1968 the former Workers Compensation (Silicosis) Compensation Scheme was extended to include diseases of the lungs likely to arise from the inhalation of harmful dust. The then Dust Diseases Board constituted by the Workers Compensation (Dust Diseases) Act 1942-1967 determined certain classes of employment in which it considered the workers would be exposed to the risk of contracting a dust disease. That determination, pursuant to s 6(3) of the Act, included the following class of employment:

(10)

Handling or processing of asbestos and the manufacture of asbestos products

35 The partnership’s broker, Minet, advised it of this change and drew attention to the fact that although compensation was payable by the Workers Compensation (Dust Diseases) Board, common law liability “which might arise in respect of workers contracting a dust disease will fall under your Workers’ Compensation Policy up to the existing limit” (Ex. CSR 589).

36 On 27 May 1969 the Partnership Committee was informed that following trade enquires which had been made concerning asbestos free calcium silicate insulation being promoted in the UK, experiments had been carried out using Rockwool in lieu of asbestos in the Hardie BI product known as K-Lite in pipe sections. The Committee was informed that production was possible if “specifications so demanded” (Ex. CSR. 617).

37 On 24 October 1969 the Partnership Committee had tabled before it a “cautionary notice” printed on cartons containing Johns-Manville Thermobestos. The Minutes of that meeting record that the Notice was in the following terms:

Caution:

38 On 2 March 1970 the partnership wrote to Minet advising that the Partnership Committee had instructed that coverage be arranged under Product Liability Insurance and sought advice on whether coverage should be based on “possible claims or on individual projects” (Ex. CSR. 767). Minet responded on 11 March 1970 advising a minimum of $200,000. In setting out the quotes for $200,000 and $500,000 Minet advised:

In view of the ever increasing awards being granted by the Courts we feel that $500,000 indemnity is perhaps better suited to your needs. (Ex. CSR 768)

39 A Products Liability Policy of insurance with the Queensland Insurance Co was issued to the partnership in the name of Hardie BI company for the period 31 March 1970 to 31 March 1971 covering “insulation materials” in the amount of $500,000. Subject to certain exceptions the policy covered the partnership for all sums for which it became legally liable to pay for compensation including in respect of bodily injury, including death and illness (Ex. CSR. 781-784).

40 Both parties rely on the Minutes of the Partnership Committee Meetings and other documents to demonstrate the circumstances surrounding the execution of the Deed. The relevant minutes of the Partnership Committee and Environmental Control Committee are contained in the Schedule to this judgment.

41 A memorandum dated 3 September 1973 to the CSR General Manager from Mr M King, one of the signatories to the Deed for CSR, includes the following:

42 In a confidential report from the Chief Medical Officer at James Hardie, Dr S.F.McCullagh, to the Personnel Director at James Hardie, on 8 October 1973 it was noted:

(Ex. CSR 1029)

43 In a further memorandum from Mr King to the General Manager on 15 November 1973 the following appears:

Some of the foregoing shortcomings have been offset by changing formulation (asbestos free), by more mechanisation and so on, but we have come to a point where neither James Hardie nor CSR can see justification for further capital expenditure needed to continue the business.

44 A document containing comments prepared for the Hardie BI Board Report for the month of April 1972 noted that several small orders of Rockwool and fibreglass in the Eastern States had been lost and that there was no doubt that this was also happening in South Australia and Western Australia. It continued:

45 In a similar document in July 1973 it was noted that electrical authorities in other States were specifying asbestos free material and whilst they had not insisted that subcontractors comply, Queensland and Western Australian unions are talking about bans and New South Wales was expected to follow suit. The following was noted:

46 In an internal James Hardie letter dated on 22 November 1972 it was noted that a five year plan was under way to eliminate asbestos wherever “this can be done”. It was also noted that the major obstacle was the greatly prolonged drying times required by the absence of asbestos (Ex. CSR. 908).

47 On 1 May 1967 Mr John McFadden was employed by James Hardie as an accountant for the partnership. He became Company Secretary of the HBI Company from about 1 June 1969 and remained in that position until January 1973. His statement (Ex K) sets out the background to the partnership obtaining “goods sold” insurance cover.

48 Mr McFadden stated that the reason for obtaining such cover was “certainly not because of any anxiety about the possibility of personal injuries being sustained by end users”. No such claims had been brought against James Hardie and the first such claims Mr McFadden recalled were in the 1980s. He stated that he obtained the insurance cover in respect of possible claims arising from defective insulation products - that is, persons alleging that the products did not work properly as insulation.

49 Mr Lionel Charles Denmead, the Secretary of James Hardie in 1974, stated that at the time the Deed was executed the possibility of end user claims being brought against James Hardie and/or the partnership had not occurred to him, nor was such a possibility mentioned to him from those within James Hardie or CSR with whom he had involvement in relation to the Deed (Ex J par 15).

James Hardie’s Submissions

50 James Hardie emphasised the use in clause 8 of the term “or any of them” in respect of the termination of the parties’ rights, duties and obligations under the Principal Deed. One of the rights covered by this term was Bradford’s right to indemnity and another was James Hardie’s right to indemnity in respect of its conduct as managing agent under the Principal Deed

51 The first part of clause 8 dealt with the termination of these rights but did not deal with claims which might arise inter se in respect of events which had already happened under the Principal Deed. It is submitted that the release dealt with these and its effect was that if some action, cause of action, demand or claim of the requisite character existed at dissolution but had not been brought forward, the claimant barred itself from pursuing it. To demonstrate this point it was submitted that if, for instance, James Hardie had a claim for reimbursement of establishment expenses which it had overlooked, or a claim for indemnity for some action as managing agent which it had failed to bring forward prior to dissolution, then James Hardie was barred from pursuing these claims.

52 It was submitted that the same would have been true of Bradford but the parties agreed to extend the time during which Bradford was able to claim the indemnity. James Hardie submitted that the indemnity to Bradford only covered claims or liability arising out of the use of products which were defective in the sense of being unfit for their intended use. It submitted that this is gleaned from the proviso in clause 9 that the products had to have been used “strictly in accordance with any written technical recommendation made previously by the partnership”.

53 James Hardie submitted that “all such actions” is a reference back to matters arising under the Principal Deed. It was submitted further that there is a complete absence of language of futurity in clause 8. “Might” is the past tense of “may” and is used with the perfect infinitive, “have had”. It was submitted that the only claims released were those in existence as at the date of the Release.

54 It was further submitted that the Release was never intended to cover the present situation. The subject matter to which it related was the termination of the Principal Deed and related only to claims by one partner against the other arising out of a breach by that other partner of a term or terms of the Principal Deed. It did not deal with a third party claim relating to a partnership matter against one only of the partners.

CSR’s Submissions

55 The Release took effect “as and from the date of dissolution”. In accordance with clauses 2 & 7 of the Deed, the date of dissolution was the date when the “net proceeds” were distributed to the partners. The net proceeds consisted of each partners’ share of the net amount “arising from the sale of all the partnership assets and the collection of all moneys due to the partnership, after satisfaction of all partnership liabilities and the cost of winding up the partnership”.

56 CSR submitted that three consequences follow from this sequence. Firstly, all the performance obligations of the partners under the Principal Deed would have to cease long before the date of dissolution. Secondly, all of the ordinary incidents of partnership duties would have been satisfied by the time of the payment of the net proceeds. Thirdly, all of the partners obligations under the Principal Deed, to the extent that they were then capable of discharge, would have been discharged by the dissolution date.

57 CSR emphasised the following features of Cl 8 of the Deed. It was addressed to the subject matter of the partnership relationship and not to any particular dispute or controversy; the “release” was in addition to the declared cessation of “all rights, duties and obligations” of the partners under the Principal Deed; and the release extended to claims that the partners “might have had” but for the Deed. In this latter respect CSR submitted the release was all embracing and referred to possible future claims. Otherwise there was no work for those words to do because the existing claims fell within the category “has had”.

58 It was submitted that as the Deed already provided for the dissolution of the partnership in clauses 2 and 7 the inclusion of the release “further” to the cessation of “all rights, duties and obligations” in clause 8 demonstrates an intention by the partners to provide an additional mechanism to evidence and complete the cessation of all incidents of the partnership obligation - including any obligation to contribute to the payment of Mr Welch’s damages.

59 That the partners had decided to bring about a complete cessation of their rights and obligations as partners in contemplation of possible future claims by third parties is, it was submitted, evidenced by two considerations (a) the terms of clause 8 and (b) the actual, but limited provision, for future claims in clause 9.

60 Clause 9 only operates as an exception to clause 8, recognised by the use of the opening words “notwithstanding clause 8”. It is submitted that such a position reinforces the width of the release in clause 8. Clause 9 relates to any third party claim “in respect of or arising out of the use” of the products. It is submitted that by referring to the use as opposed to the purchase of the products, the clause is unarguably directed to potential tortious liability to persons other than purchasers. Of course this could include a purchaser who also used the product.

61 Clause 9 contains a limited and conditional post dissolution indemnity in favour of Bradford in respect of these claims. It is submitted that this implicitly recognises that a complete release in relation to those claims would otherwise have been provided by the terms of clause 8. It is also submitted that the fact that written notice had to be provided by Bradford to the partners of any claims by 30 June 1975, is evidence that the partners, and Bradford, specifically contemplated the possibility that third party claims might be made in the future, and agreed that only Bradford would have a limited indemnity in respect of those claims.

62 For these reasons CSR submitted that there is no textual basis, nor any part of the surrounding circumstances, that can be relied upon to justify construing clause 8 as having a more narrow scope. It is finally submitted that principles of equity limiting the scope of the release could not be applied because the terms of the Deed do not permit a finding of a lack of intention to include the present claim in the terms of the release.

Construction of the Release

63 In construing the Release the Court is ascertaining the meaning that the Release would convey to a reasonable person having the background knowledge which would reasonably have been available to the parties at the time they executed the Release. Words are given their natural and ordinary meaning, however the law does not require judges to attribute to parties an intention that they plainly could not have had: Investors Compensation Scheme Ltd v West Bromwich Building Society (1998) 1 All ER 98 per Lord Hoffmann at 114 - 115.

64 James Hardie submitted that there is a special rule relating to general releases and relied upon what Gleeson CJ and Handley JA said in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29:

The rule is that the general words of a release will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed.

65 In Qantas Airways v Gubbins the respondent’s case was that although they executed releases in general terms, they had been “assured” that the releases would not be raised as a defence to the claims before the Court. They claimed that on the faith of that assurance the releases were given. It was in those circumstances, with reference to Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112, that the Chief Justice referred to the “rule” of reading down a release to conform to the contemplation of the parties.

66 In the joint judgment in Grant v John Grant there is reference to the “special doctrines”, which “from a very early time”, have been applied by the Court of Chancery to the unconscientious reliance upon the general words of a release (at p 125). Their Honours refer to a number of texts Historical Sketch of the Equitable Jurisdiction of the Court of Chancery. Sir Duncan Kerly at p 246; A Treatise on Equity. Published anonymously in 1737 (which Sir William Holdsworth attributed to Henry Ballow in History of English Law vol 12, p.191); Fonblanque’s Fifth Ed of the Treatise,p.440; Principles of Contract. Sir Frederick Pollock 13th Ed. P 412

and cases Cole v Gibson (1750) 1 Ves. Sen. 503 at 507; 27 ER 1169 at 1171; Ramsden v Hylton (1751) 2 Ves Sen 304 at 310; 28 ER 196 at 200. Salkeld v Vernon (1758) 1 Eden 64 at 67, 68; 28 ER 608 at 609. Lindo v Lindo (1839) 1 Beav. 496; 48 ER 1032; Turner v Turner (1880) 14 Ch D 829; Cloutte v Storey (1911) 1 Ch 18; Lyall v Edwards (1861) 6 H.& N 337; 158 ER 139. in support of the proposition that a release will not be construed as applying to something of which a party executing it was ignorant.

67 In this case Mr Taylor SC made an extensive analysis of these texts and cases in support of a submission that the ascertainment of the “true purpose” of the transaction is to be determined from the construction of the terms of the Deed or by proof of surrounding circumstances. He endeavoured to persuade me that the texts and authorities referred to in Grant v John Grant do not support the very broad approach that ultimately found expression as a “rule” in Gleeson CJ’s judgment in Qantas Airways v Gubbins.

68 In Bank of Credit and Commerce International SA (in liquidation) v Ali & Ors [2001] 1 All ER 961, the House of Lords analysed the cases and at least Sir Frederick Pollock’s Principles of Contract as relied upon by Mr Taylor in his submissions. Indeed the day after the hearing of the present case had concluded Mr Taylor quite properly, by note, advised that he had discovered BCCI v Ali overnight. I am of the view that it provides helpful guidance in this case.

69 In BCCI v Ali a former employee of the Bank, who had been made redundant, signed a release in 1990 in the following terms:

The Applicant [Mr Naeem] agrees to accept the terms set out in the documents in the attached in full and final settlement of all or any claims whether under statute, Common Law or in Equity of whatsoever nature that exist or may exist and, in particular, all or any claims rights or applications of whatsoever nature that the Applicant has or may have or has made or could make in or to the Industrial Tribunal, except the Applicant’s rights under the Repondent’s [the bank’s] pension scheme. (at 964)

70 The Applicant received 9,910.79 pounds, of which 2,772.50 pounds was paid in consideration of him signing the release. The Bank was placed into liquidation about one year later in 1991 and it became clear that it had for some years been seriously insolvent and had carried on its business in a corrupt and dishonest manner.

71 Employees of the Bank made claims for “stigma” damages which were rejected by the liquidators. These damages were said to arise from being associated with a corrupt and dishonest bank which handicapped those employees in obtaining alternative employment. The rejection of these claims was upheld by the courts until 1998 when the House of Lords ruled that such claims were sustainable in principle: Malik v Bank of Credit and Commerce International SA (in liq); Mahmud v Bank of Credit and Commerce International SA (in liq) [1997] 3 All ER 1; [1998] AC 20.

72 The Applicant wished to pursue a claim for stigma damages and the liquidators claimed that the release signed in 1990 prevented such a claim from being brought. Lightman J dismissed the Applicant’s claim on the ground that the general language of the release was sufficiently comprehensive to embrace the Applicant’s claim for stigma damages. The majority of the Court of Appeal agreed that the release embraced such a claim, but all members of the Court of Appeal held that it would in all the circumstances be unconscionable for the Bank to rely on the release to bar the Applicant’s claim. The Bank’s appeal to the House of Lords was dismissed Lord Bingham of Cornhill [1] - [20], with whom Lord Browne-Wilkinson agreed [21], Lord Nicholls of Birkenhead [22] - [35] and Lord Clyde [77] - [87] in separate speeches; Lord Hoffmann [36] - [75] dissenting..

73 Lord Bingham of Cornhill reviewed the cases to which Mr Taylor referred in his analysis and expressed the view that these authorities justified the proposition that in the absence of clear language, the court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware:[10] - [17]. I respectfully agree with that view.

74 His Lordship also expressed the view that these authorities provide “not a rule of law but a cautionary principle which should inform the approach” (at [17]) of construction of an instrument containing a release of the kind in that case. Accepting, as must be the case, that authorities are to be read in the context of their peculiar facts, it is, with respect, understandable that his Lordship expressed his shared reluctance with the judges he had quoted, to infer that a party intended to give up something which neither he, nor the other party, knew or could know that he had.

75 Lord Bingham referred to the passage of the joint judgment in Grant v John Grant (at 129), which approved Lord Keeper Henley’s (later Earl of Northington) approach in Salkeld v Vernon (1758) 1 Eden 64 at 67-68; 28 ER 608 at 609 that knowledge is imported in the releasor of what he releases “unless upon a particular and solemn composition for peace persons expressly agree to release uncertain demands” as both good law and good sense [9]. However Lord Hoffmann, dissenting, referred to such an approach as allowing Lord Keeper Henley’s ghost to strike back with an unfortunate return to formalism [62].

76 Lord Nicholls of Birkenhead dealt with the topic of special rules and general releases in the following way at [26];

Further, there is no room today for the application of any special ‘rules’ of interpretation in the case of general releases. There is no room for any special rules because there is no occasion for them. A general release is a term in a contract. The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made. This general principle is as much applicable to a general release as to any other contractual term.

[28]:

This approach, however, should not be pressed too far. It does not mean that once the possibility of further claims has been forseen, a newly emergent claim will always be regarded as caught by a general release, whatever the circumstances in which it arises and whatever its subject matter may be. However widely drawn the language, the circumstances in which the release was given may suggest, and frequently they do suggest, that the parties intended or, more precisely, the parties are reasonably to be taken to have intended, that the release should apply only to claims, known or unknown, relating to a particular subject matter.

77 The matters to which the Court must have regard in the construction of the Release and, if necessary, in determining whether the equitable principle should be applied, to some extent overlap. The first of these matters involves deciding the ordinary meaning of the release, taking into account the terms of the Deed as a whole and by giving the words within it their natural and fair meaning. This is done having regard to their context within the Deed and in the context of the parties relationship and all relevant facts surrounding the transaction so far as was known to the parties at the time the Deed was executed.

78 If the ordinary meaning of the Release includes this claim for contribution, the second matter involves deciding whether CSR, on grounds of fairness and equity, is precluded from relying upon it. This too involves a consideration of the parties relationship and the relevant facts, but in this respect it includes conduct after the Deed was executed.

79 This was not a Deed entered into to settle a dispute. It was to terminate the partnership and the partnership’s engagement of the sole distributor. The parties agreed that if any conflict existed between the Deed and the Principal Deed, the Deed was to prevail.

80 The context of the Deed as a whole is the winding up of a partnership. Bradford had a “right” to indemnity under the Principal Deed. James Hardie and CSR were obliged to indemnify Bradford under the Principal Deed. The indemnity was contained in clause 10 of Division 7 of the Principal Deed. That indemnity remained in force for the period during which the partnership remained “in force” (cl 14 Principal Deed).

81 Notwithstanding (a) the provision for the termination of that “right” under the Principal Deed when the partnership was no longer “in force”; (b) the agreement in clause 8 that such right was at an end by the execution of the Deed; and (c) the agreement by Bradford in clause 8 to release James Hardie and CSR from their obligation to indemnify it; by clause 9 of the Deed, Bradford was granted an indemnity by James Hardie and CSR in almost identical terms to that granted in the Principal Deed. Such indemnity was to apply on and from the date of dissolution in respect of claims made either before or after the date of dissolution but notified to James Hardie and CSR by 30 June 1975.

82 James Hardie and CSR released each other from all “actions, causes of action, demands or claims” which either of them “has had” against the other or but for the Deed “might have had” against the other. The word “whatsoever” as appears in the indemnity clause 9 does not appear in clause 8. That tends to suggest that the claims released were more limited than those for which the indemnity was given to Bradford in clause 9. The clause and indeed the same sentence in which the release is found contains the agreement (a) to bring the partnership to an end by the execution of the Deed, and (b) to cease all rights duties and obligations under the Principal Deed.

83 The Release is found in this context in the Deed.

84 It is obvious that in the latter years of the partnership there was pressure to produce asbestos free products and that this was being dictated by what was happening both in the UK and the USA. Although this was in part based on health considerations, there does not seem to have been a great deal of urgency to produce an asbestos free product. There was mention of 2-3 years (Ex. CSR 846) and 5 years (Ex CSR 901, 920). The Chief Medical Officer informed James Hardie in late 1973 that it was most unlikely that the pleural changes noted in some workers were of “any biological significance”(Ex CSR 1029).

85 It appears from the minutes of the Partnership Committee that the pressure to produce an asbestos free product had a commercial and financial impact on the partnership both from the point of view of a lack of ability to market the asbestos products, as well as the increased costs of producing an asbestos free product and the associated technical problems of achieving the same insulation effect.

86 A review of the partnership’s likely future viability in September 1973 led the partners to conclude that they would not be interested in further capital investment if that proved necessary because of the development of an asbestos free product (Ex CSR 1003-4; 1048-9). The partnership business had been “only moderately profitable” and by November 1973 the “recent downward trend in sales” (ex CSR 1048-9; 1054) and appraisal of the performance of the partnership caused the parties to agree to close the business down and wind up the partnership (Ex CSR 1054).

87 CSR submitted that the breadth of this Release has the consequence that if the end user chooses to proceed against only one partner in the Tribunal, then that partner is liable for the whole of the damages awarded in such a case. If, however, the end user chooses to pursue both partners in the Tribunal, both would be liable.

88 If such a claim had been made post dissolution against Bradford and James Hardie, which had been notified by Bradford to James Hardie and CSR before 30 June 1975, it follows from this construction that James Hardie would not be permitted to make a claim for contribution from CSR notwithstanding the indemnity by both James Hardie and CSR. Lord Reid’s opinion in Wickman Tools SalesLimited v F.L. Schuler A.G. [1974] A.C. 235 at 251 is apt:

The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.

89 There is nothing in the surrounding circumstances that suggests that the partners, or either of them, turned their minds to the possibility that one partner only could or might be sued by end users with a potential liability for millions of dollars. There is nothing to suggest that there was any contemplation of the likelihood that one or other of the partners was more likely to be chosen by such end user.

90 There is nothing to suggest that either partner considered giving up, let alone was willing, to give up its entitlement to contribution from the other partner for partnership liabilities to third parties. The fact that the extension of the indemnity to Bradford for twelve months after the date of dissolution was by both partners and not just one of them tends to support this lack of contemplation. This is more so if one were to accept, contrary to James Hardie’s submissions, that the indemnity may have included claims for personal injury arising out of the use of products.

91 This circumstance suggests that the parties were approaching their obligations in respect of partnership products jointly rather than leaving liability to attach in a serendipitous fashion to one or other of them, depending upon the end user’s choice of defendant.

92 Both parties have relied on the words “might have had” in the Release. The introduction of the word “had” after “might have” on one view limits the claims that are released to those that were available to the partners to make at the time the Deed was executed but had not at the time been made. The earlier expression “have had” would apply to those claims that were available and had been made at the time of the execution of the Deed. On that analysis CSR’s submission that the words “might have had” were otiose unless they referred to future claims would not be correct.

93 However the words might equally mean that one partner would “have had” a claim in the future but for the entry into the Deed. I am of the view that the breadth of the release is not clear. The fact that there are two respectable and persuasive competing arguments in respect of this clause lends weight to its lack of clarity. The comparison with other releases is not always helpful, however it is submitted that clarity would be necessary if the true purpose was to give up the right, the subject of these proceedings.

94 Comparison was made with a release containing the expression “whatsoever, either at law or in equity which they.. now have or hath, or which they.. may hereafter have” Lyall v Edwards 6 H &N 337 at 340 to demonstrate a clear intention that future claims were released. In my view such expression would leave the reader of it in less doubt than that in which I find myself in respect of the meaning in the present Release.

95 As I have said earlier the use of the term “whatsoever” in clause 9 and its absence in clause 8 may tend to suggest a more limited intention in respect of the release. There is also the absence in clause 8 of the words “whether before or after the date of dissolution” which are found in clause 9 that tend to support a more limited intention.

96 The granting of the indemnity to Bradford in the Deed also suggests to me that the partners were intending that they would be jointly liable for partnership products rather than releasing each other from such liability, in particular releasing each other in contemplation of the chance that an end user might sue only one of the partners in respect of the liability.

97 In considering the surrounding circumstances on this aspect of the matter I am applying the approach of giving to the Deed the meaning which ought reasonably be ascribed to the words having due regard to the purpose of the contract and the circumstances in which it was made. It is these circumstances and purpose which convince me that the words, although apparently broad enough on one view of them to include the claim in these proceedings, do not in fact include it.

98 I am satisfied that in the context of the Deed, the partners relationship at the time and the surrounding circumstances, the terms of the Release do not include the claim of the type in these proceedings. However if that finding were not to prevail I regard it as prudent to deal with the second matter as to whether in fairness or equity CSR is entitled to rely upon the Release if its construction were to include the claim in these proceedings.

99 I am satisfied that neither party contemplated the possibility that such a claim would or could be made against the partnership, let alone against only one partner. When the first of the claims of the type made in the Welch proceedings was made in 1982 by Mr R Baker, the parties initial approach was one of cooperation to the litigation in respect of each of the claims. Indeed in a letter dated 4 August 1983 CSR’s corporate lawyer advised James Hardie:

As you are aware, it is a distinct possibility that a person who claims damages as a result of exposure to asbestos-containing products manufactured by the partnership may well have also been exposed to asbestos-containing products manufactured separately by either of the partners or by other manufacturers. The almost limitless possibilities in this regard renders it to my mind almost impossible to settle upon a formula that will determine the quantum of the contribution that should be made by each of the partners towards the satisfaction of any judgment that might ultimately be obtained. For this reason I suggest that it is appropriate for each matter to be considered individually on the bases of the available evidence.

(Ex N 1257-8)

100 The “arrangement” reached between the parties was recorded in 1986 in a letter from the Executive Director of CSR to the Deputy Managing Director of James Hardie in the following terms:

Gavin tells me that when you and he met in mid-1983 he indicated that:

101 This arrangement seems to have been adopted as a foundation for the management of the various cases that were commenced in the Tribunal until the Cross Claims in the Tribunal were stood over or these proceedings were commenced.

102 As I have said earlier I rejected this post contract evidence in aid of the construction of the Release In addition to the cases referred to in that judgment I am of the view that Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61, per Heydon JA at 26, is further support for the rejection of the evidence in relation to that aspect of the case. and am only considering it in respect of whether in fairness or equity CSR should be able to rely upon it. This material gives limited assistance even in this regard.

103 There is nothing in the evidence to suggest that the fear of litigation or even the prospect of litigation was a factor which persuaded the parties to close the business down and enter into the Deed. The partnership had been informed that any dust related claims made by workers would be made under their Workers’ Compensation Policy.

104 The brokers advised the partnership about the increase in the amounts that courts were awarding and that it should increase the cover for product liability. I am satisfied in the circumstances of Mr McFadden’s unchallenged evidence that it was understood by the partnership that this related to defective goods, which, for instance failed as insulation, rather than court awards for or advice in relation to personal injury from products containing asbestos. Such claims were not known of until the early 1980s.

105 CSR did not call evidence from any officer to suggest that, at the time it entered into the Deed, CSR contemplated that end users would be able to sue manufacturers for dust related diseases and that it was willing to release James Hardie from any liability to contribute to any damages awarded against CSR, should the end user choose to sue CSR alone. James Hardie called unchallenged evidence that the prospect of end users bringing proceedings against the partnership was not contemplated by it and not discussed with CSR (Ex J).

106 I am satisfied that neither party contemplated that one only of them would be responsible for damages in respect of claims such as the Welch proceedings. Indeed it seems from the post contractual conduct up to the late 1980s or mid 1990s that CSR, at the very least, saw it as fair that it contributed 50% of any damages attributable to partnership products. In all the circumstances I am satisfied that it would be unfair to allow CSR to rely on the Release if it were found to include the present claim.

107 James Hardie is not barred by Clause 8 of the Deed from bringing the claim in these proceedings. In these circumstances James Hardie is entitled to contribution from CSR in respect of the amount of damages awarded against James Hardie attributed to the partnership products in the Welch proceedings.

Costs Issue

108 CSR conceded that if I find that James Hardie is not barred by Clause 8 from bringing these proceedings, James Hardie would be entitled to contribution in relation to its costs of the Welch proceedings: Morgan Equipment Company & Ors v Rodgers [No. 2] (1993) 32 NSWLR 467 at 481-485.

109 In these circumstances I find that James is entitled to contribution from CSR for its costs of the Welch proceedings.

Insurance Issue

110 The Products Liability Policy (Ex CSR 781) insured the entity “Hardie BI Company” in respect of “Insulation Materials” (the Policy). Liability was denied. The Policy provided that:

in consideration of the payment of the Premium and subject to the terms and conditions exceptions and memoranda contained herein endorsed hereon or attached hereto the Company will pay to or on behalf of The Insured all sums which The Insured shall become legally liable to pay for the compensation in respect of (a) bodily injury (which expression includes death and illness) (b) damage to property (which expression includes loss of property) occurring during the Period of Insurance as a result of an accident and caused by any of the products.

111 The Provisos to the Policy included the due observance and fulfilment of the terms of the Policy by the Insured, the Hardie B.I. Company.

112 The James Hardie Group, which included James Hardie, entered into a Deed with QBE on 30 June 2000 (Ex. CSR 1613) pursuant to which it was paid $500,000 and it has been agreed in these proceedings that the amount of $5,000 is attributable to the Welch proceedings (the QBE Deed).

113 The Recitals to the QBE Deed states that the relationship between the James Hardie Group, Hardie-B.I. Company and the Hardie B.I. Policies is set out in Schedule 3 which James Hardie warranted (Cl. 6.3). That Schedule states:

1. By Deed dated 24 September 1964, James Hardie & Coy Pty Limited (“JHC”), the Colonial Sugar Refining Company Limited (“CSR”) and Bradford Insulation Industries Pty Limited (“the Partners”) entered into a partnership known as “Hardie B.I. Company”

2. JHC asserts that JHC and CSR were at all material times equally entitled to share in the profits, losses, assets and liabilities of Hardie B.I. Company.

3. JHC asserts that Hardie BI Company and each of the Partners are insured under the Hardie B.I. Policies.

4. By deed dated 26 June 1974 the Partners dissolved the partnership on the terms of that Deed.

5. JHC and CSR have made claims under the Hardie BI Policies. The claims made by JHC relate to claims made against it by third parties. JHC seeks equal contribution from the Partners in relation to each such claim.

114 The parties to the QBE Deed agreed that any James Hardie Claim was only for the James Hardie Group’s legal entitlement “as a partner or former partner of the Hardie B.I. Company under the relevant Hardie B.I. Policy” (Cl.2.2(a)). The payment of $500,000 was in full and final settlement of all James Hardie claims. James Hardie released the QBE Group “completely” in relation to the James Hardie Claims (C. 3.2).

115 The parties to the QBE Deed agreed that nothing in the Deed affected the interests of any James Hardie Associate or the Associate Policies (Cl. 4.3). Any partner or former partner of the Hardie B.I. Company, except James Hardie, was included in the definition of James Hardie Associate (Sch. 1 Cl. 3(a)). The Associate Policies were defined to include the Hardie B.I. Policy (Sch. 1 Cl.9).

116 James Hardie submitted that the Policy was composite rather than joint. I disagree. It seems to me that the Policy was a true contract of indemnity in respect of joint loss the partnership might suffer: General Accident Fire and Life Assurance Corporation Ltd v Midland Bank Ltd [1940] 2 KB 388 per Sir Wilfred Greene MR at 404-405; MMI General Insurance Ltd v Baktoo (2000) 48 NSWLR 605. I am of the view that it was a joint policy.

117 James Hardie submitted that CSR’s rights under the policy are unaffected and, should it wish to pursue QBE it could do so. It submitted that the amount received attributable to the Welch proceedings is not partnership property for which it is required to account to CSR.

118 It was submitted that for joint insurance to attach, all insured must be able to sue on the claim. It was submitted that as CSR was not sued by Mr Welch it was not in a position to make a claim. That seems contrary to the facts as warranted in the Schedule to the QBE Deed, which recites that CSR has made claims. Notwithstanding the terms of the QBE Deed stating that CSR is not affected, if the Policy is joint, CSR may have no success in pursuing QBE. In any event if it was successful in receiving an amount in respect of the Welch proceedings I am of the view that it would have to account to James Hardie.

119 In the circumstances of my findings in respect of the Release, CSR is required to contribute to James Hardie’s liability for damages and costs in the Welch proceedings. James Hardie has received money from QBE by reason of the joint partnership Policy and in those circumstances I am satisfied it is required to account to CSR in respect of 50% of the amount.

Orders

120 The parties have agreed on quantum in respect of each of the findings. There will be judgment for the plaintiff in the amount of $57,500. I will hear the parties in respect of any costs order should they not be able to agree on a consent order.

SCHEDULE

Partnership Committee Minutes

Mr Stevens requested details of the specification and availability of asbestos free K-Lite. The meeting AGREED that asbestos free K-Lite was not to be considered as a standard Hardie - B.I. product until further research into raw materials had been conducted. The present method of production using fibreglass rovings had proven too expensive and experiments using paper pulp were being conducted.

However, the meeting further AGREED that orders would be accepted and filled using fibreglass rovings when asbestos free material was specified. In such cases, it was AGREED that for small quantity orders the price would be the same as the present K-Lite material but in the case of large orders the price should be plus an additional 15% on current list prices.
(23 October 1970. Ex. CSR 803)

The labelling of packages to indicate that K-Lite is a product containing Asbestos was discussed. It was AGREED that action be deferred until the requirements of proposed legislation became known. In the meantime every endeavour to reduce the health hazards should be made.

Environmental Control Committee Minutes

DUST CONTROL - End User Exposure

DUST CONTROL - Statutory Provisions

NH & MRC Working Party

As to New Zealand

Malaysia

DUST CONTROL - The End User

DUST CONTROL - Statutory Provisions

Australia

DUST CONTROL - The End User:

DUST CONTROL - Statutory Provisions:

Australia

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Last Modified: 05/08/2001

Citations

Amaca Pty Limited formerly known as James Hardie & Coy Pty Limited v CSR Limited [2001] NSWSC 324

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Cases Cited

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Statutory Material Cited

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CITATION:	Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd v CSR Ltd [2001] NSWSC 324
CURRENT JURISDICTION:	Equity Division Commercial List
FILE NUMBER(S):	SC 50053/1999
HEARING DATE(S):	9, 10, 11, 18 and 19 April 2001
JUDGMENT DATE:	7 May 2001
PARTIES :	Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd (Plaintiff) CSR Ltd (Defendant)
JUDGMENT OF:	Bergin J

COUNSEL :	CG Gee QC/TGR Parker (Plaintiff) PW Taylor SC/JE Fernon (Defendant)
SOLICITORS:	Allen Allen & Hemsley (Plaintiff) Toomey Pegg Drevikovsky (Defendant)
CATCHWORDS:	[DEEDS] - Construction - Release in Deed of partnership dissolution - Whether Release includes claim for contribution for damages awarded to end users of asbestos products produced by partnership in claim brought many years later in which only one partner is sued - Cautionary principle to be applied in approach to construction. [EQUITY] - If such claim is included in Release, whether in fairness and equity the releasee is entitled to rely upon it.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Partnership Act 1892 (NSW)
CASES CITED:	Bank of Credit and Commerce International SA (In Liquidation) v Ali & Ors [2001] 1 All ER 961 Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 Cloutte v Storey (1911) 1 Ch 18 Cole v Gibson (1750) 1 Ves. Sen. 503; 27 ER 1169 General Accident Fire and Life Assurance Corporation Ltd v Midland Bank Ltd [1940] 2 KB 388 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 Investors Compensation Scheme Ltd v West Bromwich Building Society (1998) 1 All ER 98 Lindo v Lindo (1839) 1 Beav. 496; 48 ER 1032 Lyall v Edwards (1861) 6 H & N 337 Malik v Bank of Credit and Commerce Internation SA (In liq); Mahmud v Bank of Credit and Commerce International SA (In liq) [1997] 3 All ER 1; [1998] AC 20 MMI General Insurance Ltd v Baktoo (2000) 48 NSWLR 605 Morgan Equipment Company & Ors v Rodgers [No.2] (1993) 32 NSWLR 467 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Ramsden v Hylton (1751) 2 Ves Sen 304; 28 ER 196 Salkeld v Vernon (1758) 1 Eden 64; 28 ER 608 Turner v Turner (1880) 14 Ch D 829 Wickman Tools Sales Limited v F.L. Schuler A.G. [1974] AC 235
DECISION:	Release in Deed not a bar to plaintiff bringing proceedings.