Brooks Lark & Co Pty Ltd v Derwent Park Developments Pty Ltd
[2013] TASSC 82
•23 December 2013
[2013] TASSC 82
COURT: SUPREME COURT OF TASMANIA
CITATION: Brooks Lark & Co Pty Ltd v Derwent Park Developments Pty Ltd
[2013] TASSC 82
PARTIES: BROOKS LARK & CO PTY LTD (ACN 009 529 711)
CARRICK, Jennifer Anne as executor of the Estate of
CARRICK, Anthony Owen
v
DERWENT PARK DEVELOPMENTS PTY LTD
(ACN 100 448 726)
FILE NO/S: 378/2006
DELIVERED ON: 23 December 2013
DELIVERED AT: Hobart
HEARING DATE: 2 December 2013
JUDGMENT OF: Porter J
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Pleadings – Application to strike out third party statement of claim – Third party notice claiming indemnity and/or contribution to the extent that the defendant suffers any loss if plaintiffs' claim succeeds – Statement of claim seeking indemnification or contribution, or in the alternative damages representing the loss to the defendant if the plaintiff succeeds – Whether statement of claim exceeded perimeter of third party notice – Whether defendant confined to strict concepts of indemnity and contribution.
Supreme Court Rules 2000 (Tas), r201(1).
Birmingham and District Land Co v London and North Western Railway Co (1887) 34 Ch D 261; Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 66 FLR 279, considered.
Aust Dig Procedure [272]
REPRESENTATION:
Counsel:
Appellants: M E O'Farrell SC
Respondent: B J Morgan
Solicitors:
Appellants: Butler McIntyre & Butler
Respondent: Toomey Manning & Co
Judgment Number: [2013] TASSC 82
Number of paragraphs: 29
Serial No 82/2013
File No 378/2006
BROOKS LARK & CO PTY LTD, JENNIFER ANNE CARRICK
AS EXECUTOR OF THE ESTATE OF ANTHONY OWEN CARRICK
v DERWENT PARK DEVELOPMENTS PTY LTD
REASONS FOR JUDGMENT PORTER J
23 December 2013
Introduction
This is an appeal from a decision of the Associate Judge. The appellants are two third parties in an action, having been joined by the respondent who is the sole defendant. For the sake of convenience I will use the parties' titles in the action. The third parties unsuccessfully applied to the Associate Judge to strike out the defendant's statement of claim in the third party proceedings. They have appealed against the dismissal of their application. The issue is whether the relief claimed in the defendant's amended statement of claim is outside the scope or perimeter of the claim which was outlined in the third party notice.
The pleadings
The plaintiffs in the action own land which adjoins land of the respondent. In 2005, the defendant built on its land. The plaintiffs allege that the building encroaches onto part of their land. The plaintiffs' original statement of claim sought only an injunction. By an amended statement of claim dated 22 February 2011, they claimed an injunction "and/or alternatively damages including aggravated damages and exemplary damages".
On 19 December 2006, the defendant issued a third party notice to Brooks Lark & Co Pty Ltd and Anthony Owen Carrick. Mr Carrick was said to be the company secretary and a servant or agent of the company. Mr Carrick has since died, and been replaced in the action by his executor, Jennifer Anne Carrick. Of course, the third party notice was issued before the plaintiffs delivered their amended statement of claim expanding the relief sought to include damages in addition, or as an alternative, to an injunction.
By par2 of the third party notice the defendant claims "to be entitled to contribution and/or indemnity in respect of the claim made against it by the plaintiffs" on the grounds which were set out in pars2(a) – (g). In short, the defendant alleges that the boundaries of its land had been surveyed by Mr Carrick as agent for the company, that the building had been erected on its land in reliance on the surveying advice, and that a duty of care was owed to the defendant to carry out the survey competently, accurately and in accordance with prevailing surveying practices.
Paragraph 3 of the notice is in the following terms:
"The defendant claims that it is entitled to an indemnity and/or contribution from you to the extent that it suffers any loss if it is found that there was an encroachment onto the plaintiffs' land, on the basis that such loss was due, or alternatively was contributed to, by your breach of contract and/or breach of your duty of care to the defendant."
The third party notice also claims an indemnity against liability for any costs which the plaintiffs may recover against the defendant in defending the action.
After the delivery of the plaintiffs' amended statement of claim, the defendant applied to amend the third party notice. The application was opposed and the outcome was that the defendant was given leave to serve a statement of claim in the third party proceedings, with the third parties given leave to apply to strike it out. The defendant's statement of claim in the third party proceedings is dated 15 April 2013. The statement of claim pleads a number of material facts, a contractual duty of care and a general duty of care in law, and breaches of those duties. Paragraph 21 alleges that as a result of the breaches referred to, the respondent:
"(a)has suffered loss and damage; and
(b)will suffer further loss and damage if the plaintiffs are successful in this proceeding."
Paragraph 22 sets out the relief claimed by the defendant against the third parties. It is in the following terms:
"The Defendant seeks as against the Third Parties or either of them:
(a)indemnification in respect of, alternatively contribution towards, or in the further alternative damages representing:
i the cost to which the Defendant is put if the Plaintiffs are granted an injunction requiring the defendant to remove from the Plaintiffs' property so much of the building works as are constructed upon that property; and
ii further, or in addition, … any order of damages which the Defendant is ordered to pay to the Plaintiffs in compensation for so much of the building works as exist on the Plaintiffs' property;
(b)indemnification in respect of, alternatively contribution towards, or in the further alternative damages representing:
i the Plaintiffs' legal costs (and expert fees) which the Defendant is ordered to pay to the plaintiff [sic] at the conclusion of this proceeding; and
ii the Defendant's legal costs (and expert fees) in defending and attending to the defence of the Claim (to be determined on an indemnity basis); or
(c)damages representing the Defendant's loss of use of the money referred to in 22(b)ii,
in respect of the breach of contract and negligence actions pleaded herein."
The decision of the Associate Judge
The application of the third parties to strike out the defendant's statement of claim came before the Associate Judge on 3 June 2013, and it was dismissed on that day. The Associate Judge noted that a pleading which set up a cause of action not encompassed within the endorsement on a writ may not be delivered in the face of objection without the endorsement being amended. His Honour said that if the facts pleaded were within the ambit of the nature and grounds of the claim, the variation and the extent of the remedy or relief sought is permissible. His Honour continued:
"Here, the clearly discernible nature of the claim is that the defendant erected its building, relying on the survey advice of the third parties and if the building encroaches on the plaintiffs' land, the defendant will suffer loss for which it claims an entitlement to be compensated by the third party. Within the perimeter of a claim of this nature, the defendant can plead facts setting up a cause of action under the Wrongs Act, s3(1)(c), a cause of action in contract, a cause of action in negligence and possibly other causes of action.
The statement of claim does not exceed the relevant perimeter of the nature of the claim contained in the third party notice. … [T]he pleaded claim falls within the range of the third party notice …".
As argued, I am only concerned in this appeal with the issue I earlier identified; that is, whether the relief sought in the amended statement of claim is outside the scope or perimeter of the third party notice. The third parties submit that it is, and without amendment to the notice cannot stand.
Discussion
Rule 202(1) of the Supreme Court Rules 2000 (SCR) enables a defendant who claims as against any person not already a party to the action "to be entitled to contribution or indemnity or any relief or remedy relating to, or connected with, the original subject-matter of the action" to file and serve a third party notice. Relevantly, r203(1) requires the notice to state the nature and grounds of the claim, and the nature and extent of any remedy or relief claimed.
It is common ground that just as a statement of claim must fall within the perimeter or range of the area marked out by the endorsement on a writ, so must a statement of claim in third party proceedings fall within the perimeter of the third party notice. An endorsement of claim is not to be construed as a pleading but is taken to be a notice of the nature of the claim: Renowden v McMullin (1970) 123 CLR 584 per Barwick CJ and McTiernan J at 595. Statements of the required relationship between a statement of claim and an endorsement can be found in Renowden v McMullin (above), Graff Brothers Estates Ltd v Rimrose Brook Joint Sewerage Board [1953] 2 QB 318 per Morris LJ at 328 – 329, Patterson v Richards [1963] VR 179 per Scholl J at 185 – 186 and Glendinning v Cuzens [2009] WASCA 21 per Newnes AJA at [29]. A statement of claim will not go beyond an endorsement if it merely involves new or different explanations or allegations as to the same claim in its essential nature: Graff Brothers Estates Ltd v Rimrose Brook Joint Sewerage Board (above).
The third parties argue that the reference in par3 of the third party notice to a claim for "an indemnity and/or contribution" confines the defendant's claim to one under s3(1)(c) of the Wrongs Act 1954.[1] Such a claim is dependent on the person from whom the contribution is sought being liable in respect of the same damage, if sued by the person by whom the damage was suffered. The argument is that the words "contribution" and "indemnity", as used in r202(1), denote particular concepts and do not extend to claims for damages.
[1] 3 Proceedings against, and contribution between, wrongdoers
Principally, the third parties rely on Birmingham and District Land Co v London and North Western Railway Co (1887) 34 Ch D 261. The proceedings involved a third party notice issued under a rule of court which enabled the person claiming an entitlement to contribution or indemnity to issue a third party notice. (The words "or other remedy or relief" had been earlier omitted from the rule.) On the facts no right to contribution could be said to have arisen. At 274, Bowen LJ said:
"I think it tolerably clear that the rule, when it deals with claims to indemnity, means claims to indemnity as such either at law or in equity. In nine cases out of ten a right to indemnity, if it exists at all as such, must be created either by express contract or by implied contract: by express contract if it is given in terms by the contract between the two parties; by implied contract if the true inference to be drawn from the facts is that the parties intended such indemnity, … I say in nine cases out of ten, for there may possibly be a tenth. Thus there might be a statute enacting that under certain circumstances a person should be entitled to indemnity as such, in which case the right would not arise out of contract, and I do not say that there may not be other cases of a direct right in equity to an indemnity … But it is quite clear to my mind that a right to damages, which is all that the Defendants have here if they are entitled to anything, is not a right to indemnity as such. It is the converse of such a right. A right to indemnity as such is given by the original bargain between the parties. The right to damages is given in consequence of the breach of the original contract between the parties. It is an incident which the law attaches to the breach of a contract, and is not a provision of the contract itself."[2]
[2] Similar observations were made by Cotton LJ at 271 and Fry LJ at 276.
This case was applied by Pincus J in Westpac Banking Corporation v P & O Containers Ltd (1991) 30 FCR 320. In that case, the rule under consideration permitted service out of the jurisdiction where claims for "indemnity in respect of a liability enforceable by the Court" were made. His Honour held that the term as used in the rule did not embrace a mere claim for damages quantified by reference to an amount payable to another party. I will return to this point.
The third parties submit that the claim for indemnity and/or contribution in par3 of the third party notice can only mean a claim for a true indemnity as described by Bowen LJ in the Birmingham and District Land Co case, and a claim for contribution under s3(1)(c) of the Wrongs Act. Alternatively, and perhaps more likely, it is simply a claim under the Wrongs Act, in which case "indemnity", in reality, means a full contribution.
The defendant points to the fact that there is nothing in the third party notice to suggest a claim for any indemnity arising by way of contract, in equity or otherwise. Further, the precondition to recovery of contribution under s3(1)(c) of the Wrongs Act, that of the third parties' liability to the plaintiffs, is not asserted. The defendant relies on comments of Smithers J (Franki and St John JJ agreeing) in Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 66 FLR 279. In that case, the essential issue was whether third party proceedings should be determined at the trial of the principal action.
Order 20 r 1 was the rule of court enabling the issue of a third party notice. It was in not dissimilar terms to SCR, r202(1), except that a notice could also be issued where any question or issue relating to or connected with the subject-matter of the action was substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined not only as between the plaintiff and the defendant, but as between the plaintiff and the defendant and the third party, or between any of them.
A further rule, O 20 r 7(1)(b), provided that if the court was satisfied that there was a question or issue proper to be tried as between the plaintiff and defendant and the third party or between any or either of them, as to the types of matters specified in O 20 r 1, it could order such question or issue to be tried in such a manner as the court or a judge directed. The third party notices in question claimed indemnity in respect of the plaintiff's claim, or alternatively contribution to such extent of the plaintiffs' claim as to the Court seems just and equitable.
The defendant in the action unsuccessfully sought an order that the issues in the third party notices be determined at the same time as the principal action. The judge at first instance held the court must be satisfied that the third party had a prima facie case under one of the three limbs of the rule enabling the issue of the third party notice.
On the defendant's appeal, questions arose as to the construction of O 20 r 7(1)(b)in light of the terms of r 1 of that Order. After discussing the terms of r 7(1)(b), and stating that r 7 should be read in the context of O 20 read as a whole, Smithers J said at 286:
"Accordingly, in the present case, it would have been sufficient for [the defendant] to satisfy the judge, on the application for directions, that there was a question proper to be tried as between relevant parties in respect of the liability of a third party to make any contribution or indemnity claimed. [The defendant] failed to do this. It would also have been sufficient for [the defendant] to have satisfied the judge that there was a question proper to be tried as between the relevant parties in determining whether [the defendant] was entitled to any other relief or remedy claimed in the notice being relief or remedy relating to or connected with the subject matter of the original action and being substantially the same as some relief or remedy claimed by [the plaintiff] against [the defendant]."
Having said that the primary judge erred in his findings about those matters, his Honour noted the respondents' argument that the third party notices did not disclose any issue or question proper to be tried; that a claim for damages was not made in express terms, but that all that had been sought was indemnity, or alternatively contribution. At 287, in a passage which it is best to set out in most of its entirety, his Honour continued:
"It is conceded in this case that these claims are not made as claims for contribution or indemnity in the sense in which those words are used in O 20, r 1 or r 7. It is said however, for [the defendant] that in the third party notices the words 'indemnity' and 'contribution' should not be read in a technical sense but according to the ordinary meaning thereof. In O 20, r 1 and r 7, the words 'indemnity' and 'contribution' are to be read as referrable to those cases where a right of indemnity arises from contract express or implied or where the relation between the parties is such that either in law or equity there is an obligation upon the one party to indemnify the other, where from the circumstances the law implies that the common intention is that the party requested shall be indemnified by the party requesting: … However, if [the defendant]'s claim to be indemnified against the plaintiff's claims against it, standing in contract or negligence as alleged therein, is not a claim for indemnity as so defined, it nevertheless would seem that the claim made in the third party notice must be read according to the ordinary meaning of the expression 'to be indemnified' in the context in which it appears. … It is apparent … that [the defendant] claims relief which it nominates as 'to be indemnified against the plaintiff's claim', but which really constitutes relief by way of a money judgment in respect of a third party's negligence to the extent of the [defendant's] liability to the plaintiff for its breach of contract, … The [defendant's] liability to the plaintiff, if any, is for damages for breach of contract. The third parties' liability to the [defendant] if any, is for damages for negligence. In this context it would seem that the words in question extend to cover all that is within their ordinary meaning. The definition of the word 'indemnify' appearing in the Shorter Oxford English Dictionary includes 'to keep free from any hurt, harm or loss, to compensate for loss suffered or expenses incurred'." [My emphasis.]
The defendant submits that its third party notice can be permissibly interpreted in the sense explained in that passage, and that it should be so interpreted. Further, returning to Westpac Banking Corporation v P & O Containers Ltd (above), the defendant relies on observations made by Pincus J. Although considering himself bound to apply the Birmingham and District Land Co case, his Honour said at 242 that there may not be much practical justification for discriminating between a claim for damages for breach of contract where the damages will amount to an indemnity on the one hand, and, on the other, a claim for an indemnity expressly given by contract. He went on to say "depending on context, a lawyer might well describe as one for indemnity a claim for damages in which the measure of damages is the amount which the plaintiff is liable to pay another party".
Resolution
Under SCR, r202(1), the defendant was entitled to file and serve a third party notice claiming an entitlement to contribution or indemnity, or any relief or remedy relating to or connected to the original subject-matter of the action. There is good cause for taking the view that the words "contribution or indemnity" in r202(1) have the strict meaning as contended for by the third parties. It is however, the terms of the notice itself which have to be construed to determine the nature of the claim made. The question is whether the statement of claim goes beyond the scope of that claim.
In my view, the following italicised words in par3 of the third party notice are critical. In that paragraph the defendant claims entitlement "to an indemnity and/or contribution … to the extent that it suffers any loss if it is found that there was an encroachment onto the plaintiffs' land …". Paragraph 3 goes on to assert that the basis of the claim is the third parties' breach of contract or breach of duty of care. It does not speak of the third parties' duty of care or liability to the plaintiffs. I think it is plain that the words "indemnity" and "contribution" in the notice should be given the same meaning attributed to those words in the Pioneer Concrete case.
Paragraph 3 might be somewhat ambiguous, but it is readily capable of being construed, and reasonably so, as a claim for damages the measure of which is the amount which the defendant might have to pay to the plaintiffs. In other words, the claim is for any amount which the defendant becomes liable to pay to the plaintiffs. To the extent that such a claim is not a claim for indemnity or contribution in strict terms, it is a claim for relief or remedy relating to or connected to the original subject-matter of the action as permitted by r202(1).
It follows that I take the view that the Associate Judge's decision was correct. The third parties argued the appeal on the basis that the whole of the statement of claim should be struck out. However, ground 5(a) of the notice of appeal asserted an error in law and/or in fact "in failing to strike out the statement of claim or the parts thereof which went beyond a claim for contribution or indemnity, or which contained a claim for damages".
The only part of the statement of claim which might be said to go beyond the scope of the third party notice is the claim in par22(c) for damages representing the loss of use of money being legal costs and expert fees in defending the plaintiffs' claim. I queried this matter with counsel for the defendant but on further consideration, as par22(c), is expressed as an alternative to the claim in par22(b)(ii) for the defendant's costs and fees in defending the plaintiffs' claim, I do not see that there is any difficulty.
The appeal is dismissed.
(1) Where damage is suffered by a person as the result of a wrongful act —
…
(c)a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage but so that no person is entitled to recover contribution under this section from a person who is entitled to be indemnified by him in respect of the liability in respect of which the contribution is payable."
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