SUPREME COURT OF QUEENSLAND
CITATION:
Ellington v Heinrich Constructions P/L & Ors [2004] QCA 475
PARTIES:
ROBERT SNEITH ELLINGTON
(plaintiff/not a party to the appeal)
v
HEINRICH CONSTRUCTIONS PTY LTD
ACN 080 897 605
(first defendant/not a party to the appeal)
WATPAC AUSTRALIA PTY LTD
ACN 010 462 816
(second defendant/respondent)
DUMARESQ CONSTRUCTIONS PTY LTD
ACN 080 341 564(third defendant/appellant)
FILE NO:
Appeal No 5490 of 2004
SC No 5805 of 2002DIVISION:
Court of Appeal
PROCEEDING:
Personal Injury
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 December 2004
DELIVERED AT:
Brisbane
HEARING DATE:
18 October 2004
JUDGES:
McMurdo P, Davies JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
1. That that part of the orders of 31 May 2004, whereby judgment was entered ‘for the second defendant [respondent] against the third defendant [appellant] for damages for all sums and costs which, pursuant to [those] orders, the second defendant [respondent] is liable to pay’, be set aside.
2. Order instead that as between the second defendant (respondent) and the third defendant (appellant) the second defendant pay two-thirds of the damages and costs ordered to be paid to the plaintiff and that the third defendant (appellant) should pay one-third of those damages and costs.
3. That the respondent pay the appellant’s costs of the appeal to be assessed on the standard basis.
CATCHWORDS:
INSURANCE – INDEMNITY AGAINST INDUSTRIAL AND LIKE RISKS – where the appellant was the subcontractor of the respondent – where the learned trial judge concluded that both the appellant and the respondent were liable to pay damages to the plaintiff at first instance – where the appellant and the respondent each issued notices claiming contribution or indemnity in respect of the plaintiff’s claim – where the learned trial judge ordered that the appropriate apportionment was two-thirds to the respondent and one-third to the appellant and made orders allowing those parties to recover contributions from each other – where the respondent also claimed indemnity on the basis of cl 16 of the subcontract between the parties – where the learned trial judge concluded that the requirements of cl 16 had not been complied with so offered no indemnity – where the appellant was ordered to pay damages – whether the learned trial judge erred in finding that the obligations imposed by cl 16 had not been complied with – whether cl 16(a) was illusory, or void for uncertainty and not capable of giving rise to any contractual right, breach of which would
sound in damages
Andar Transport Pty Ltd v Brambles Limited (2004) 78 ALJR 907, cited
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549, cited
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130, discussed
Canberra Formwork Pty Ltd v Civil and Civic Ltd& Anor (1982) 41 ACTR 1, discussed
Chan v Cresdon Pty Ltd (1989) 168 CLR 242, cited
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- AGLC
- Ellington v Heinrich Constructions Pty Ltd [2004] QCA 475
- Case
- [2004] QCA 475
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the trial judge correctly interpreted the indemnity clause and whether it was valid. The court had to determine if the clause was capable of giving rise to any contractual rights, and if so, whether the respondent had complied with the clause. The appellant also argued that the indemnity clause should be disregarded if it was illusory or void for uncertainty.
The court found that the trial judge did not err in concluding that the respondent had not complied with the indemnity clause. The clause was not illusory or void for uncertainty; it was clear and specific in its requirements. The court upheld the trial judge's decision regarding the apportionment of liability. The indemnity clause was not triggered because the respondent did not meet the conditions specified in the clause. The court set aside the previous orders and instead ordered that the respondent should pay two-thirds of the damages and costs, while the appellant should pay one-third. Additionally, the respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. That that part of the orders of 31 May 2004, whereby judgment was entered ‘for the second defendant [respondent] against the third defendant [appellant] for damages for all sums and costs which, pursuant to [those] orders, the second defendant [respondent] is liable to pay’, be set aside.
2. Order instead that as between the second defendant (respondent) and the third defendant (appellant) the second defendant pay two-thirds of the damages and costs ordered to be paid to the plaintiff and that the third defendant (appellant) should pay one-third of those damages and costs.
3. That the respondent pay the appellant’s costs of the appeal to be assessed on the standard basis.
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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