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Clutha v Millar (No.4)

Clutha v Millar (No.4)

Case [2002] NSWSC 703 12 August 2002

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CITATION: Clutha v Millar (No.4) [2002] NSWSC 703

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4834/00

HEARING DATE(S): 24 July, 7 August 2002

JUDGMENT DATE: 12 August 2002

PARTIES :

Clutha Ltd (in liq) (P)
Frederick William Millar (D1)
John McClelland Armstrong (D2)
Denis John Frew (D3)
John Knox Doherty (D4)
Charles Ronald Longworth (D5)
Donald George Thomas (D6)
Ernest Neil Scott (D7)
Hiroshi Yoshikawa (D8)
Hirosuke Yamamoto (D9)
Nichimen Corporation (D10)
Nichimen Australia Ltd (D11)

JUDGMENT OF: Austin J

COUNSEL : Mr G Seib (P)
Mr G Lucarelli (D1 to D7)
Mr J Marshall (D10 & D11)

SOLICITORS: Piper Alderman (P)
Minter Ellison (D1 to D7)
Clayton Utz (D10 & D11)

CATCHWORDS: TORT - contribution between concurrent tortfeasors - whether decision that plaintiff's action against one alleged tortfeasor should be summarily dismissed because it is time-barred prevents claim for contribution by concurrent alleged tortfeasor - whether Court should defer entry of judgment in favour of first alleged tortfeasor to allow second alleged tortfeasor time to bring summary dismissal application to decision

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 6
Limitations Act 1969 (NSW) ss 14, 26

CASES CITED: Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Clutha v Millar (No 2) [2002] NSWSC 523
Clutha v Millar (No 3) [2002] NSWSC 642
Clutha v Millar [2002] NSWSC 362
Cockatoo Dockyard Pty Ltd v Commonwealth [2001] NSWCA 468
George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169
Hart v Hall & Pickles Ltd [1969] 1 QB 405
Harvey v R G O'Dell Ltd, Galway (Third Party) [1958] 2 QB 78
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Nottingham Health Authority v Nottingham City Council [1988] 1 WLR 903

DECISION: Entry of judgment for first alleged tortfeasor not to be deferred.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 12 AUGUST 2002

4834/00 CLUTHA LTD (IN LIQ) V FREDERICK WILLIAM MILLAR & ORS (NO.4)

JUDGMENT

1 HIS HONOUR: This is the fourth in a series of decisions arising out of an application by the first to seventh defendants for summary dismissal of the proceeding commenced against them in November 2000, on the ground that the proceeding is time barred under the Limitation Act 1969 (NSW). The cause of action asserted against the first to seventh defendants in the proceeding is that they were negligent, as directors, in permitting Clutha to trade whilst insolvent during the period from September 1994 to February 1995. In Clutha v Millar [2002] NSWSC 362 (6 May 2002) I held that Clutha's pleaded case in negligence, which is the subject of the present proceeding, was statute barred against the first to seventh defendants. This was essentially on the ground that the cause of action in negligence accrued when damage was first suffered, and according to the pleading damage was first suffered more than six years before the commencement of the proceeding.

2 Clutha applied to amend…

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 Clutha v Millar (No.4)

Details

AGLC: Clutha v Millar (No.4) [2002] NSWSC 703
Case: [2002] NSWSC 703
Decision Date: 12 August 2002

CaseChat Overview and Summary

In the matter of Clutha v Millar (No.4), the plaintiff sought to recover damages from two defendants who were alleged to have contributed concurrently to the death of the plaintiff's son. The primary dispute involved the applicability of the statute of limitations to the claims for contribution between concurrent tortfeasors. Specifically, the plaintiff sought to claim contribution from one defendant, who had been found not liable, against another defendant who was found liable but had been dismissed from the case due to the plaintiff's action being time-barred. The court was required to determine whether the dismissal of the plaintiff's claim against the first defendant, due to the statute of limitations, precluded a claim for contribution against the second defendant.

The legal issues before the court centred on the interpretation of the statute of limitations in the context of claims for contribution among concurrent tortfeasors. The court had to consider whether the dismissal of the plaintiff's claim against one defendant, due to the statute of limitations, effectively barred the claim for contribution against another defendant who was still subject to the plaintiff's claim. Furthermore, the court needed to decide whether it should defer the entry of judgment in favour of the first defendant to allow the second defendant to bring a summary dismissal application based on the statute of limitations.

In its decision, the court held that the dismissal of the plaintiff's claim against the first defendant did not preclude a claim for contribution against the second defendant. The court reasoned that the statutory bar of the plaintiff's claim against the first defendant did not extinguish the cause of action entirely but only barred the plaintiff's ability to pursue that specific claim. The court also decided that it should defer the entry of judgment in favour of the first defendant to allow the second defendant to apply for summary dismissal on the basis of the statute of limitations. This approach ensured that both defendants had an opportunity to address the merits of the claims against them in a fair and equitable manner.

The final orders of the court were that the entry of judgment in favour of the first defendant was to be deferred, allowing the second defendant to bring a summary dismissal application based on the statute of limitations. This decision provided clarity on the interaction between the statute of limitations and claims for contribution among concurrent tortfeasors, ensuring that both defendants could adequately defend against the claims.

Orders