Barclay v Penberthy and Ors

[2012] HCATrans 279

[2012] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P55 of 2011

B e t w e e n -

AARON BARCLAY

Appellant

and

ALEC PENBERTHY

First Respondent

FUGRO SPATIAL SOLUTIONS PTY LTD ACN 008 673 916

Second Respondent

NAUTRONIX (HOLDINGS) PTY LTD ACN 009 067 099 AND L‑3 COMMUNICATIONS NAUTRONIX LTD ACN 009 019 603

Third Respondents

MALCOLM ANTHONY CIFUENTES

Fourth Respondent

MICHAEL BRIAN KNUBLEY

Fifth Respondent

JULIE ANNE WARRINER

Sixth Respondent

JANET GRAHAM

Seventh Respondent

OZAN PERINCEK

Eighth Respondent

Office of the Registry
  Perth  No P57 of 2011

B e t w e e n -

ALEC PENBERTHY

First Appellant

FUGRO SPATIAL SOLUTIONS PTY LTD ACN 008 673 916

Second Appellant

and

AARON BARCLAY

First Respondent

NAUTRONIX (HOLDINGS) PTY LTD ACN 009 067 099 AND L‑3 COMMUNICATIONS NAUTRONIX LTD ACN 009 019 603

Second Respondents

MALCOLM ANTHONY CIFUENTES

Third Respondent

MICHAEL BRIAN KNUBLEY

Fourth Respondent

JULIE ANNE WARRINER

Fifth Respondent

JANET GRAHAM

Sixth Respondent

OZAN PERINCEK

Seventh Respondent

Pronouncement of orders

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 2012, AT 10.21 AM

Copyright in the High Court of Australia

FRENCH CJ:   These proceedings were heard on 1 May this year by a Court constituted by Justices Gummow, Hayne, Heydon, Crennan, Kiefel, Bell and myself.  On 2 October this year the Court dismissed each appeal subject to the making of consequential orders finally disposing of the appeals.  Pursuant to order 4 of the orders made by this Court on 2 October, the parties have brought in agreed draft orders finally disposing of the appeals. 

The order of the Court is:

In matter No. P55 of 2011:

1.        Appeal dismissed.

2.Special leave be granted to the third respondents to cross‑appeal, the cross‑appeal be treated as instituted and heard instanter and dismissed.

3.The appellant pay the costs of the third respondents of the appeal, and the third respondents pay the costs of the appellant of the cross‑appeal, the costs to be set off.

4.Vary paragraph 2.1 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“save that the first and third defendants only are liable for, and do pay to the sixth plaintiffs, damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit),”.

5.Vary paragraph 3 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“Save that the first and third defendants only are liable to the sixth plaintiffs for damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs and for costs payable to the sixth plaintiffs referable to that claim (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit), that”.

In matter No. P57 of 2011:

1.        Appeal dismissed.

2.Special leave be granted to the second respondents to cross‑appeal, the cross‑appeal be treated as instituted and heard instanter and dismissed.

3.The appellant pay the costs of the second respondents of the appeal, and the second respondents pay the costs of the appellant of the cross‑appeal, the costs to be set off.

4.Vary paragraph 2.1 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“save that the first and third defendants only are liable for, and do pay to the sixth plaintiffs, damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit),”.

5.Vary paragraph 3 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“Save that the first and third defendants only are liable to the sixth plaintiffs for damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs and for costs payable to the sixth plaintiffs referable to that claim (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit), that”.

I publish that order.

AT 10.24 AM THE MATTER WAS CONCLUDED