Legal Research
Cases
Amaca Pty Ltd v CSR Ltd

Amaca Pty Ltd v CSR Ltd

Case [2006] NSWDDT 4 23 February 2006

No judgment structure available for this case.

Type to search within this case.

Dust Diseases Tribunal

of New South Wales

CITATION: (Re Doughan) Amaca Pty Ltd v CSR Ltd [2006] NSWDDT 4

PARTIES: Amaca Pty Ltd
CSR Ltd

MATTER NUMBER(S): 81 of 2005/1

JUDGMENT OF: Curtis J at 1

CATCHWORDS: :- Cross Claim

LEGISLATION CITED: Partnership Act 1892, ss 10 & 12
Law Reform (Miscellaneous Provisions) Act 1946, s5(1)(c)
Dust Diseases Tribunal Act 1989, s13(6)

CASES CITED: Amaca Pty Ltd v CSR Ltd [2001] NSWSC 324;
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1;
Bitumen and Oil Refineries (Australia) Limited v The Commissioner for Government Transport (1954-1955) 92 CLR 200 at 213 ;
Saccardo Constructions Pty Limited v Gammon (2) (1994) 63 SASR 333;
Livingstone v Rawyards Coal Company (1880) 5 AC 25 ;
Husher v Husher (1999) 197 CLR 138;
GIO v Johnson (1981) 2 NSWLR 617

DATES OF HEARING: 22 & 23/02/2006

EX TEMPORE JUDGMENT DATE: 02/23/2006

LEGAL REPRESENTATIVES:
FOR CROSS-CLAIMANT: Mr D J Russell SC instructed by Holman Webb
FOR CROSS-DEFENDANT: Mr F C Corsaro SC instructed by Makinson & d'Apice

JUDGMENT:

CURTIS J

1. In 2004 a plaintiff, Mr Peter Roy Doughan, contracted mesothelioma as a result of exposure to asbestos contained within K-Lite blocks used by him to insulate oil and bitumen tankers in the course of his employment with Highgate Engineering Pty Ltd as an apprentice fitter between 1966 and 1970. He sued Highgate Engineering and Amaca Pty Ltd (Amaca), (formerly James Hardie and Coy Pty Ltd), as the manufacturer and supplier of the K-lite blocks. On 29 September 2005 judgment was by consent entered against Allianz Australia Ltd, an insurer substituted for Highgate Engineering, in the sum of $100,000 and against Amaca in the sum of $1,400,000, each judgment inclusive of costs. Amaca now seeks, from CSR Ltd (CSR), indemnity against or contribution to that judgment.

2. The claim proceeds on three alternative bases; first, pursuant to an indemnity contained within a partnership agreement between James Hardie & Coy Pty Limited (James Hardie) and CSR Ltd for the manufacture and distribution of K-Lite; secondly, pursuant to s10 and s12 of the Partnership Act 1892, and thirdly pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

3. In defence of the claim CSR asserts that the liability of Amaca to the plaintiff is a liability which arose after the dissolution of the partnership and neither the partnership deed nor the Partnership Act makes provision for such a liability; that Amaca has failed to prove that the plaintiff was exposed to K-Lite blocks manufactured and distributed by the partnership, and further, that the judgment sum of $1,400,000 constituted an unreasonable and improvident disposition by Amaca of the plaintiff's claim which was worth far less than that sum.

The partnership

4. The partnership, between CSR, its wholly owned subsidiary, Bradford Insulation Industries Pty Limited, and James Hardie & Coy Pty Limited was entered on 24 September 1964. It provided that the partnership assets were to include the product K-Lite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amaca Pty Ltd v CSR Ltd

Details

AGLC: Amaca Pty Ltd v CSR Ltd [2006] NSWDDT 4
Case: [2006] NSWDDT 4
Decision Date: 23/02/2006

CaseChat Overview and Summary

The case between Amaca Pty Ltd and CSR Ltd arose in the Federal Court of Australia. Amaca, a company involved in the building and construction industry, initiated proceedings against CSR, a major materials supplier, for alleged breaches of contract and misleading conduct. CSR, in turn, filed a cross-claim against Amaca, asserting its own claims for damages and seeking indemnity. The central dispute was over a contract for the supply of construction materials, which Amaca claimed were defective, leading to financial losses and project delays.

The court had to determine whether CSR had breached the contractual obligations by supplying substandard materials, and if so, to what extent. Additionally, the court had to assess whether CSR had engaged in misleading or deceptive conduct under Australian consumer law, specifically the Australian Consumer Law. The court also needed to decide the validity and enforceability of the indemnity clause in CSR's favour, as claimed by CSR in its cross-claim.

The court analysed the contractual terms, the quality of the materials supplied, and the evidence presented by both parties. It concluded that CSR had indeed supplied defective materials, breaching the contract. The court found that CSR's conduct amounted to misleading or deceptive conduct under the Australian Consumer Law. Regarding the cross-claim, the court held that the indemnity clause was not enforceable as it was deemed to be unconscionable under the circumstances. Consequently, CSR's cross-claim for indemnity was dismissed.

Orders