James Hardie & Co Pty Ltd v Wyong Shire Council

James Hardie & Co Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning contribution between joint tortfeasors. The dispute arose from a claim brought by a plaintiff against both James Hardie & Co Pty Ltd and Wyong Shire Council. The Supreme Court had ordered James Hardie & Co Pty Ltd to pay a proportion of the damages awarded to the plaintiff, as well as a proportion of the plaintiff's costs.

The central legal issue before the Court of Appeal was whether the right to contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) extended to include the costs ordered to be paid by one tortfeasor to the plaintiff. Specifically, the court had to determine if a tortfeasor who is jointly and severally liable for the plaintiff's loss could recover from another tortfeasor a proportion of the costs incurred in satisfying the plaintiff's judgment, including the plaintiff's legal costs.

The Court of Appeal, comprising Handley, Giles, and Heydon JJA, held that the right to contribution under section 5 of the Act did encompass the costs payable to the plaintiff. Their Honours reasoned that the purpose of the section was to allow for the equitable distribution of liability among tortfeasors. Therefore, the costs incurred by one tortfeasor in satisfying the judgment, which included the plaintiff's costs, were part of the overall liability that should be shared. The court affirmed that the liability for contribution extended to the entirety of the judgment debt, including damages and costs awarded to the plaintiff. Leave to appeal was granted, and orders were made reflecting this determination.