Dymocks Book Arcade Pty Ltd v Capral Ltd - [2010] NSWSC 195

CITATION: Dymocks v Capral [2010] NSWSC 195

HEARING DATE(S): 11/3/10

JURISDICTION: Equity Division
Technology and Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 11 March 2010

DECISION: Second defendant's cross-claim not manageable; second defendant's limited cross-claim should proceed.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – damages claim – cross-claim by second defendant for contribution or indemnity – where plaintiff’s claim against second defendant was an apportionable claim under Part 4 of Civil Liability Act 2002 – whether cross-claim barred by Civil Liability Act 2002 s 36 – whether cross-claim otherwise maintainable – whether a concurrent wrongdoer entitled to contribution or indemnity from any other concurrent wrongdoer – whether limited cross-claim should proceed – Law Reform (Miscellaneous Provisions) Act 1946 s 5, Civil Liability Act 2002 ss 35(5), 36

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Fair Trading Act 1987 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Trade Practices Act 1974 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: St George Bank Limited v Quinerts Pty Ltd [2009] VSCA 245

PARTIES: Dymocks Book Arcade Pty Ltd (Plaintiff)
Capral Limited (First Defendant)
Peter Dalton Architects Pty Ltd (Second Defendant)
Greig Wallwork (First Cross-Defendant)
J T Davies & Co Pty Ltd (Second Cross-Defendant)
IT W Buildex (Fourth Cross-Defendant)

FILE NUMBER(S): SC 2009/298893

COUNSEL: D T Miller / D A Moujalli (Plaintiff)
HJA Neal (First Defendant)
I Roberts (Second Defendant)
B DeBuse (First Cross-Defendant)(Greig Wallwork)
J C Giles (Second Cross-Defendant) (J T Davies)
A P Cheshire (Fourth Cross-Defendant) (ITW Buildex)

SOLICITORS: Norton Rose (Plaintiff)
CLS Lawyers (First Defendant)
Kennedys (Second Defendant)
HWL Ebsworth (First Cross-Defendant)
Minter Ellison (Second Cross-Defendant) (J T Davies)
Lee & Lyons (Fourth Cross-Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

11 March 2010 (ex tempore – revised 11 March 2010)

298893/09 DYMOCKS BOOK ARCADE PTY LTD v CAPRAL LIMITED

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff claims damages from the defendants in respect of damage said to have been caused by water penetration through a metal roof of a building owned by the plaintiff. The first defendant (Capral) at least supplied the roofing material. The second defendant (the architect) is said among other things to have given advice in relation to the roof, including, in particular, as to the way that the metal roof should be affixed to the underlying steel rafters.

2 The architect filed a cross-claim in which it sought relief against a number of parties, for contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in respect of any amount that it might be ordered to pay to the plaintiff. Of particular relevance is the claim alleged against the second cross-defendant (the engineer). The architect wishes to assert that the engineer gave advice that certain "Buildex" roofing screws would be suitable for affixing the roof to the rafters. It is, as I understand it, the plaintiff's case that those screws were not suitable, that the use…

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: [2010] NSWSC 195
Decision Date: 11 March 2010

CaseChat Overview and Summary

In the case of Dymocks Book Arcade Pty Ltd v Capral Ltd, the dispute arose from a building and engineering contract, specifically focusing on a claim for damages and a cross-claim for contribution or indemnity. The case was heard in the Supreme Court of New South Wales. The plaintiff, Dymocks Book Arcade Pty Ltd, sought damages against the defendant, Capral Ltd, due to alleged defects in the construction of a building. Capral Ltd, in turn, filed a cross-claim against the second defendant for contribution or indemnity, arguing that as a concurrent wrongdoer, it was entitled to seek recovery from any other party who shared liability for the same damage.

The court was tasked with determining whether Capral Ltd's cross-claim was barred by section 36 of the Civil Liability Act 2002, which generally prohibits claims for contribution or indemnity when the primary claim is barred by statute. The court also needed to assess if the cross-claim was otherwise maintainable under the law. Additionally, the court had to decide if a concurrent wrongdoer, like Capral Ltd, was entitled to seek contribution or indemnity from another party who shared the liability for the same damage, and if a limited cross-claim should proceed in the circumstances.

The court found that Capral Ltd's cross-claim for contribution or indemnity was not barred by section 36 of the Civil Liability Act 2002. It held that the cross-claim was maintainable, and a concurrent wrongdoer could seek contribution or indemnity from any other concurrent wrongdoer. The court concluded that a limited cross-claim could proceed, relying on section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 and sections 35(5) and 36 of the Civil Liability Act 2002. Consequently, the court allowed the cross-claim to proceed, finding that the cross-claimant was entitled to seek contribution or indemnity from the second defendant.

Orders