Ellington v Heinrich Constructions Pty Ltd

The appellant, a subcontractor, appealed against a decision that determined the apportionment of liability for damages owed to a plaintiff. The respondent, the principal contractor, and the appellant were both liable for the damages and costs awarded to the plaintiff. The trial judge apportioned two-thirds of the liability to the respondent and one-third to the appellant. Additionally, the respondent claimed indemnity under a clause in the subcontract, but the trial judge ruled that the requirements for indemnity had not been satisfied. The appellant argued that the trial judge erred in finding that the indemnity clause was not satisfied and that the clause was illusory or void for uncertainty.

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.