Tobias JA at 1; Macfarlan JA at 2; Handley AJA at 99
DECISION:
(1) The appeal is allowed in part; (2) By consent, vary the amount of the judgment entered against the Owner in favour of Mr Clark by substituting the amount of $120,064.12 for the amount of $160,000; (3) Set aside the order of Christie ADCJ made on 28 May 2009 dismissing the Owner’s Cross Claim against the Managing Agent; (4) Order that the Managing Agent contribute to the Owner 60 per cent of the Owner’s judgment liability to Mr Clark; (5) Set aside the judgment directed on 28 May 2009 in favour of the Managing Agent against Mr Clark, together with the order that Mr Clark pay the costs of the Managing Agent; (6) Direct the entry of judgment in favour of Mr Clark against the Managing Agent in the amount of $120,064.12; (7) Order that the Owner and Managing Agent pay Mr Clark’s costs of the appeal; (8) Order that the Managing Agent pay Mr Clark’s costs of the proceedings at first instance (this order being in addition to the order made at first instance that the Owner pay Mr Clark’s costs of the proceedings at first instance); (9) Order that the Managing Agent pay 60 per cent of the Owner’s costs at first instance and on appeal of the Owner’s Cross Claim against the Managing Agent and of the costs payable by the Owner to Mr Clark in respect of Mr Clark’s claim against the Owner; (10) Order that the Managing Agent pay the Owner’s costs at first instance and on appeal of the Managing Agent’s Cross Claim against the Owner; (11) Grant leave to the Managing Agent to apply within 14 days of the date of this judgment for an order against the Owner for contribution in respect of the Managing Agent’s liability to Mr Clark (including as to costs) and for associated orders, including an order as to the costs of its Cross Claim; and (12) The Managing Agent to have a certificate under the Suitors’ Fund Act 1951, if qualified.
CATCHWORDS:
TORTS - negligence - occupier's liability - whether owner of commercial premises delegated to managing agent its duty of care as occupier of common property - whether managing agent an occupier of common property - plaintiff injured in fall on unlit stairs - whether breach of duty by occupier - Civil Liability Act 2002 s 5B - CONTRACT - principal and agent - obligations of managing agent of commercial premises - whether entitled to indemnity from principal - LANDLORD AND TENANT - appointment of managing agent of commercial premises - meaning of "maintenance" of premises - whether extended to setting of automatic light switch
[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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AGLC
Laresu Pty Ltd v Clark [2010] NSWCA 180
Case
[2010] NSWCA 180
Decision Date
CaseChat Overview and Summary
In *Laresu Pty Ltd v Clark*, the New South Wales Court of Appeal considered an appeal concerning a plaintiff's injury sustained from a fall on unlit stairs. The plaintiff, Mr Clark, had fallen on common property stairs within a commercial building. The owner of the premises, Laresu Pty Ltd (the Owner), had appointed a managing agent to oversee the property. Mr Clark sued both the Owner and the managing agent for negligence.
The central legal issues before the Court of Appeal were whether the Owner had effectively delegated its occupier's duty of care to the managing agent, whether the managing agent could be considered an occupier of the common property, and whether either party had breached their duty of care to Mr Clark, particularly in relation to the lighting of the stairs. The court also had to determine the extent of the managing agent's obligations under its contract with the Owner, including whether the term "maintenance" encompassed the setting of an automatic light switch, and the consequent rights of indemnity between the Owner and the managing agent.
The Court of Appeal found that while the Owner retained a non-delegable duty of care, the managing agent, by undertaking the management and maintenance of the common property, had assumed the role of an occupier in relation to those areas. The court applied principles of occupier's liability and contractual obligations between a principal and agent. It determined that the managing agent was liable for the plaintiff's injuries due to a breach of its duty of care, and that the Owner was also liable, but that the managing agent should contribute significantly to the Owner's liability.
The appeal was allowed in part. The judgment against the Owner in favour of Mr Clark was reduced by consent. Crucially, the dismissal of the Owner's cross-claim against the managing agent was set aside, and the managing agent was ordered to contribute 60 per cent of the Owner's liability to Mr Clark. Judgment was entered in favour of Mr Clark against the managing agent for the reduced amount, and detailed orders were made regarding the payment of costs between all parties, including the managing agent bearing a substantial portion of the Owner's costs and Mr Clark's costs.
Orders
Orders of the court
(1) The appeal is allowed in part;
(2) By consent, vary the amount of the judgment entered against the Owner in favour of Mr Clark by substituting the amount of $120,064.12 for the amount of $160,000;
(3) Set aside the order of Christie ADCJ made on 28 May 2009 dismissing the Owner’s Cross Claim against the Managing Agent;
(4) Order that the Managing Agent contribute to the Owner 60 per cent of the Owner’s judgment liability to Mr Clark;
(5) Set aside the judgment directed on 28 May 2009 in favour of the Managing Agent against Mr Clark, together with the order that Mr Clark pay the costs of the Managing Agent;
(6) Direct the entry of judgment in favour of Mr Clark against the Managing Agent in the amount of $120,064.12;
(7) Order that the Owner and Managing Agent pay Mr Clark’s costs of the appeal;
(8) Order that the Managing Agent pay Mr Clark’s costs of the proceedings at first instance (this order being in addition to the order made at first instance that the Owner pay Mr Clark’s costs of the proceedings at first instance);
(9) Order that the Managing Agent pay 60 per cent of the Owner’s costs at first instance and on appeal of the Owner’s Cross Claim against the Managing Agent and of the costs payable by the Owner to Mr Clark in respect of Mr Clark’s claim against the Owner;
(10) Order that the Managing Agent pay the Owner’s costs at first instance and on appeal of the Managing Agent’s Cross Claim against the Owner;
(11) Grant leave to the Managing Agent to apply within 14 days of the date of this judgment for an order against the Owner for contribution in respect of the Managing Agent’s liability to Mr Clark (including as to costs) and for associated orders, including an order as to the costs of its Cross Claim; and
(12) The Managing Agent to have a certificate under the Suitors’ Fund Act 1951, if qualified.