Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Limited [2022] NSWCA 246 Hearing dates: 25 October 2022 Date of orders: 2 December 2022 Decision date: 02 December 2022 Before: White JA at [1];
Brereton JA at [2];
Simpson AJA at [51].Decision: (1) Dismiss the appeal.
(2) On the cross-appeal, set aside the orders made by the District Court on 10 May 2022 and in lieu thereof:
(a) Judgment for the plaintiff against the first defendant in the sum of $750,000 (judgment sum) inclusive of interest.
(b) Order that the first defendant pay the plaintiff’s costs of the proceedings.
(c) Dismiss the first cross-claim.
(d) Dismiss the second cross-claim.
(e) Order that the first defendant pay the second defendant’s costs of both cross-claims.
(f) The plaintiff’s claim against the second defendant and against the third defendant be dismissed.
(g) The first defendant pay the second defendant’s costs of the proceedings on an indemnity basis from 19 November 2021.
(h) No order as to the costs of the notices of motion filed 18 March 2022, 23 March 2022 and the amended notice of motion filed in court on 28 April 2022 with the intention that each party bear its own costs of those motions.
(3) Liberty to apply within fourteen days to vary any of the above orders, any such application to be made by written submission lodged with the Associate to Brereton JA.
(4) Liberty to apply within fourteen days for any necessary direction in respect of restitution.
Catchwords: NEGLIGENCE – Duty of care – Where subcontractor injured lifting heavy door on construction site – Apportionment of liability between head contractor and manufacturer of door – Insufficient evidence to conclude door-manufacturer owed any relevant duty of care to injured worker
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 569; [2005] HCA 26
James Hardie & Coy Pty Limited v Roberts (1999) 47 NSWLR 425; [1999] NSWCA 314
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34
Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161; [2006] HCA 19
Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65; [1997] HCA 52
Category: Principal judgment Parties: Bellevarde Constructions Pty Ltd (Appellant/Second Cross-Respondent)
L’Officina by Vincenzo Australia Pty Limited (Second Respondent/Cross-Appellant)
Alan Monahan (First Cross-Respondent)Representation: Counsel:
Solicitors:
J B Turnbull SC with B Hull (Appellant/Second Cross-Respondent)
P Morris SC with R Gambi (Second Respondent/Cross-Appellant)
Holman Webb Lawyers (Appellant/Second Cross Respondent)
Moray & Agnew Lawyers (Second Respondent/Cross Appellant)
Firths The Compensation Lawyers (First Cross Respondent)
File Number(s): 2022/91354 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- District Court of New South Wales at Sydney
- Jurisdiction:
- Civil
- Citation:
- Date of…
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- AGLC
- Bellevarde Constructions Pty Ltd v L'Officina by Vincenzo Australia Pty Limited [2022] NSWCA 246
- Case
- [2022] NSWCA 246
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether the head contractor owed a duty of care to the subcontractor and, if so, whether that duty was breached. Additionally, the Court had to consider whether the door manufacturer owed a relevant duty of care to the injured worker and whether any such duty was breached. The Court also had to assess the extent of damages and the appropriate apportionment of liability between the parties found to be at fault.
The Court of Appeal found that the head contractor, Bellevarde Constructions Pty Ltd, owed a duty of care to Mr. L'Officina and had breached that duty, leading to his injuries. However, the Court determined that there was insufficient evidence to establish that the door manufacturer, Vincenzo Australia Pty Limited, owed any relevant duty of care to the injured worker in the circumstances. Consequently, the appeal by Bellevarde Constructions was dismissed, and the cross-appeal concerning the manufacturer's liability was allowed. The Court set aside the District Court's previous orders and entered judgment for Mr. L'Officina against Bellevarde Constructions for $750,000, inclusive of interest, and ordered Bellevarde Constructions to pay Mr. L'Officina's costs. The claims against the manufacturer were dismissed, and Bellevarde Constructions was ordered to pay the manufacturer's costs of the cross-claims and the proceedings on an indemnity basis from a specified date.
Orders
Orders of the court
(1) Dismiss the appeal.
(2) On the cross-appeal, set aside the orders made by the District Court on 10 May 2022 and in lieu thereof:
(a) Judgment for the plaintiff against the first defendant in the sum of $750,000 (judgment sum) inclusive of interest.
(b) Order that the first defendant pay the plaintiff’s costs of the proceedings.
(c) Dismiss the first cross-claim.
(d) Dismiss the second cross-claim.
(e) Order that the first defendant pay the second defendant’s costs of both cross-claims.
(f) The plaintiff’s claim against the second defendant and against the third defendant be dismissed.
(g) The first defendant pay the second defendant’s costs of the proceedings on an indemnity basis from 19 November 2021.
(h) No order as to the costs of the notices of motion filed 18 March 2022, 23 March 2022 and the amended notice of motion filed in court on 28 April 2022 with the intention that each party bear its own costs of those motions.
(3) Liberty to apply within fourteen days to vary any of the above orders, any such application to be made by written submission lodged with the Associate to Brereton JA.
(4) Liberty to apply within fourteen days for any necessary direction in respect of restitution.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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