Brooks Lark & Co Pty Ltd v Derwent Park Developments Pty Ltd - [2013] TASSC 82

[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…

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.

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Details

Case: [2013] TASSC 82
Decision Date: 23 December 2013

CaseChat Overview and Summary

The case of Brooks Lark & Co Pty Ltd v Derwent Park Developments Pty Ltd involved a dispute between the plaintiff, Brooks Lark & Co Pty Ltd, and the defendant, Derwent Park Developments Pty Ltd, in the Supreme Court of Tasmania. The plaintiff sought damages for a claim that arose from a contract for the sale of land, and the defendant had issued a third party notice seeking indemnity or contribution from the plaintiff in the event that the defendant was found liable to the plaintiff. The plaintiff subsequently applied to strike out the defendant's third party statement of claim on the basis that it exceeded the scope of the third party notice.

The legal issues before the court were whether the third party statement of claim exceeded the perimeter of the third party notice and whether the defendant was confined to the strict concepts of indemnity and contribution as outlined in the third party notice. The court needed to determine if the defendant's claim for damages in the alternative was permissible under the circumstances, or if it was an attempt to expand the scope of the third party proceedings beyond what was initially contemplated.

In examining the scope of the third party notice, the court considered the language used in the notice and the statement of claim. The court found that the third party notice did not explicitly exclude the possibility of the defendant claiming damages in the alternative, and that the statement of claim did not exceed the scope of the notice. The court held that the defendant was not limited to the strict concepts of indemnity and contribution, but could also claim damages in the alternative if it could be shown that such a claim was not an expansion of the third party proceedings. The application to strike out the third party statement of claim was therefore dismissed.

The court's decision in this case clarified the scope of third party proceedings in the Supreme Court of Tasmania and provided guidance on the permissible claims that can be made in such proceedings. The court's ruling that the defendant was not confined to the strict concepts of indemnity and contribution and could claim damages in the alternative, provided a degree of flexibility in third party proceedings, while also ensuring that the scope of such proceedings remained within the bounds set by the initial third party notice.

Orders