Anderson v LD Contractors Pty Ltd - [2020] NSWSC 49

Supreme Court

New South Wales

Medium Neutral Citation: Anderson v LD Contractors Pty Ltd [2020] NSWSC 49
Hearing dates: 3 & 10 February 2020
Date of orders: 10 February 2020
Decision date: 10 February 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Judgment for the cross-claimant on the cross-claim in the sum of $1,110,000.
2. The cross-defendant is to pay the cross-claimant's costs assessed at $4,173.

Catchwords: JUDGMENTS AND ORDERS – default judgment – two defendants – cross-claim by second defendant against first defendant – contractual claim for indemnity - where no defence filed to a cross-claim – where proceedings settled with plaintiff obliging each defendant to pay a share of the agreed damages – judgment on the cross-claim for sum quantified in the settlement – whether a liquidated sum
Legislation Cited: Legal Profession Uniform Law
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Arnold v Forsythe [2012] NSWCA 18
Texts Cited: Nil
Category: Principal judgment
Parties: Shane Adam Anderson (Plaintiff)
LD Contractors Pty Ltd (First Defendant/Cross-Defendant)
Resource Pacific Pty Ltd (Second Defendant/Cross-Claimant)
Representation:
Counsel:
No appearance (First Defendant/Cross-Defendant)
S Sykes (Second Defendant/Cross-Claimant)
Solicitors:
Self-represented (First Defendant/Cross-Defendant)
Barry Nilsson (Second Defendant/Cross-Claimant)

File Number(s): 2016/375869
Publication restriction: Nil

Judgment

The plaintiff was injured on 6 November 2014 when working in an underground coalmine at Ravensworth. The plaintiff was employed by the first defendant LD Contractors. The second defendant was the owner and operator of the coalmine.
The proceedings were listed for hearing on 3 February 2020. On 9 January 2020 the proceedings settled on terms that there would be judgment in favour of the plaintiff against the first defendant in the sum of $250,000 inclusive of costs and workers compensation payments, and judgment for the plaintiff for $1,110,000 inclusive of costs against the second defendant.
On 29 August 2018 the second defendant filed and served a cross-claim against the first defendant, and on 20 December 2019 an amended cross-claim was filed. The amended cross-claim sought damages for breach of contract. The basis of the claim was that pursuant to the contract entered into between the defendants the first defendant would indemnify the second defendant against all damage or liability of any nature incurred by the second defendant arising from a breach of contract by the first defendant or from any negligent act or omission of the first defendant. The contract also provided that the first defendant was to effect and maintain throughout the term of the contract policies of insurance including public and third party liability insurance with an overall limit of $20 million for any one occurrence covering legal liability for injury to any person arising out of the provision by the first defendant of work under the contract or obligations under the contract.
The cross-claim further alleged that although the first defendant effected a combined general liability policy with QBE Insurance (Australia) Ltd and AAI Ltd t/as Vero Insurance, the second defendant’s claim for coverage under the policy was denied because it was not named on the placing…

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 Anderson v LD Contractors Pty Ltd

Details

AGLC: Anderson v LD Contractors Pty Ltd [2020] NSWSC 49
Case: [2020] NSWSC 49
Decision Date: 10 February 2020

CaseChat Overview and Summary

The case of Anderson v LD Contractors Pty Ltd involved a plaintiff, Anderson, who initiated legal proceedings against two defendants, LD Contractors Pty Ltd and another party. The dispute arose from a contractual claim, with the second defendant filing a cross-claim against the first defendant for indemnity. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was to determine whether the sum quantified in the settlement agreement, which the defendants were required to pay, constituted a liquidated sum for the purposes of enforcing the cross-claim.

The court considered whether the settlement agreement amounted to a liquidated sum, which is a predetermined sum of money specified in a contract to be paid in the event of a breach. The court examined the nature of the settlement and the terms of the agreement, particularly focusing on whether the sum was fixed and ascertainable at the time of the agreement or if it was contingent upon future events or determinations. The court concluded that the settlement sum was indeed a liquidated sum because it was a fixed amount agreed upon by the parties as compensation for the plaintiff's damages. This determination was based on the clear terms of the settlement and the fact that the sum was not dependent on any future events or further assessments.

In light of the court's findings, the judgment was entered in favour of the plaintiff on the cross-claim, awarding the sum quantified in the settlement agreement. The court's decision was influenced by the lack of a defence filed to the cross-claim and the clear terms of the settlement agreement, which established the fixed amount owed by the defendants. This ruling effectively resolved the contractual dispute between the defendants and ensured that the plaintiff received the agreed-upon compensation for the damages incurred.

Orders