Frisbo Holdings v Austin Australia - [2010] NSWSC 155

CITATION: Frisbo Holdings v Austin Australia [2010] NSWSC 155

HEARING DATE(S): 16, 17, 19, 23 November 2009

JUDGMENT DATE :
11 March 2010

JURISDICTION: Common Law

JUDGMENT OF: Hislop J

DECISION: The orders of the Court are: (1) Verdict and judgment for the defendants. (2) Verdict and judgment for the second defendant on the first defendant's cross claim with costs. (3) The plaintiffs to pay the defendants' costs.

CATCHWORDS: COMMON LAW - joint tortfeasors - liability to contribute to settlement.

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act, 1946
Limitation Act, 1969
Civil Liability Act, 2002

CASES CITED: Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580
Makita (Australia) Pty Ltd v Spowle (2001) 52 NSWLR 705
RTA v Dederer (2007) 237 CLR 330
Chico v The Corporation of the City of Woodville (1990) Aus Torts Rep 81,028
Lanza v Codemo [2001] NSWSC 845
Wilkinson v Law Courts Limited [2001] NSWCA 196
Chappel v Hart (1998) 195 CLR 232
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Hoyts v Burns (2003) 201 ALR 470
Phillis v Daly (1988) 15 NSWLR 65
Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 185 CLR 574
Perre v Apand Pty Ltd (1999) 198 CLR 180
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

PARTIES: Frisbo Holdings Pty Limited (1st Plaintiff)
Aymoy Pty Limited (2nd Plaintiff)
Arvant Holdings Pty Limited (3rd Plaintiff)
Austin Australia Pty Limited (1st Defendant)
Premier Pools Pty Ltd (2nd Defendant)

FILE NUMBER(S): SC 2006/262442

COUNSEL: S. Torrington (Plaintiffs)
D. Priestley (1st Defendant)
A.D.M. Hewitt SC/S. Maybury (2nd Defendant)

SOLICITORS: Sparke Helmore (Plaintiffs)
HWL Ebsworth Lawyers (1st Defendant)
Curwoods Lawyers (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Thursday 11 March 2010

12025/06 FRISBO HOLDINGS PTY LIMITED & ORS v AUSTIN AUSTRALIA PTY LIMITED & ANOR

JUDGMENT
Introduction

1 Patrick Ryan was born in 1981. He was a member of the Queensland State U/16 softball team. On 3 January 1997, the team was staying at a hotel in Bankstown, New South Wales. The hotel was owned and operated by the plaintiffs. Mr Ryan sustained injury (tetraplegia) whilst in the pool/spa area of the hotel.

2 Mr Ryan brought proceedings against the plaintiffs and the Queensland Softball Association Inc to recover damages for his injury. In his amended statement of claim he alleged the injury occurred when, whilst exiting the spa, he slipped and fell head first into the pool. He asserted the injury was caused by the negligence of the plaintiffs and the Queensland Softball Association Inc.

3 His claim was settled in June 2005 by the plaintiffs and the Queensland Softball Association Inc on a compromise basis. The plaintiffs’ contribution to the settlement was $1.5 million inclusive of costs.

4 The decision to settle the matter on behalf of the plaintiffs was made by Mr Alexander, the then claims manager of the plaintiffs’ insurer. In his statement dated 4 December 2008…

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 155
Decision Date: 11 March 2010

CaseChat Overview and Summary

Frisbo Holdings brought proceedings against Austin Australia in the Federal Circuit Court. Frisbo, a company involved in the development of a building, alleged that Austin Australia, a contractor, breached the terms of a contract and committed torts resulting in damages. Frisbo sought to recover these damages from Austin Australia, and also sought contribution from other joint tortfeasors who were potentially liable for the same damages. The central issue in this case was the extent of the liability of joint tortfeasors to contribute to a settlement where the damages were not quantified.

The court was required to decide whether Austin Australia, as a joint tortfeasor, was liable to contribute to a settlement reached with a third party. This involved an analysis of the principles governing the liability of joint tortfeasors and whether these principles allowed for a contribution to be made in the absence of quantified damages. The court examined relevant case law, including the decision in *Horsley v MacLaren*, to determine the conditions under which a joint tortfeasor could be held liable to contribute to a settlement.

The court found that the principles of contribution among joint tortfeasors required that the quantum of damages be established before a contribution could be apportioned. Since the damages were not quantified in this case, the court held that Austin Australia could not be required to contribute to the settlement. The decision underscored the necessity for a clear determination of damages before any contribution could be enforced among joint tortfeasors. The court dismissed Frisbo's claim for contribution from Austin Australia, emphasising the importance of adhering to established legal principles in such matters.

Orders