31 August 2016, Final written submissions 12 September 2016
Decision date:
04 August 2017
Before:
McColl JA at [1]; Meagher JA at [304]; Ward JA at [305]
Decision:
See paragraph 303
Catchwords:
NEGLIGENCE – duty of care – leased premises – collapse of balcony causing personal injury to plaintiffs – where agent managing property negligent – landlord’s duty of care – whether landlord also breached duty of care
NEGLIGENCE – duty of care – leased premises – collapse of balcony causing personal injury to plaintiffs – where agent managing property negligent – tenant’s duty of care – whether tenant also breached duty of care
TORTS – negligence – occupier's liability – whether owner of residential premises effectively delegated to managing agent its duty of care as occupier of common property
NEGLIGENCE – whether Civil Liability Act 2002 (NSW), s 5B principles considered and applied
CONTRACT – contractual indemnity – breach of implied term to exercise reasonable care and skill pursuant to management agreement between managing agent and owners – whether owners entitled to contractual indemnity from managing agent for liability to tenant for breach of contractual obligation to keep premises in repair and for liability to injured plaintiffs for breach of duty of care – whether entitlement to contractual indemnity reduced due to owners’ contributory negligence – Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
NEGLIGENCE – claim for contribution – whether owner liable to contribute as joint tortfeasor to managing agent’s liability to plaintiffs – where tortfeasor seeking to recover contribution from person entitled to be indemnified by it in respect of liability in respect of which contribution is sought – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
NEGLIGENCE – claim for contribution – whether tenant liable to contribute as joint tortfeasor to managing agent’s liability to plaintiffs – apportionment on just and equitable basis – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
[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
Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Case
[2017] NSWCA 196
Decision Date
CaseChat Overview and Summary
Libra Collaroy Pty Ltd (the landlord) and Mr Bhide (the tenant) were parties to a dispute arising from the collapse of a balcony at leased premises, which caused personal injury to the plaintiffs. The landlord had engaged a managing agent to manage the property. The plaintiffs alleged negligence against the landlord, the managing agent, and the tenant.
The court was required to determine whether the landlord owed a duty of care to the plaintiffs and, if so, whether that duty was breached. It also considered whether the landlord had effectively delegated its occupier's duty of care to the managing agent. Further issues included whether the tenant owed a duty of care and breached it, and whether the landlord was entitled to contractual indemnity from the managing agent for any liability to the tenant and the injured plaintiffs. The court also examined claims for contribution between the parties as joint tortfeasors.
The court found that the landlord, as the owner of the premises, owed a duty of care to the plaintiffs. This duty was not discharged by the appointment of a managing agent. The landlord breached this duty by failing to take reasonable steps to ensure the safety of the balcony. The court also found the managing agent negligent. Regarding the tenant, the court determined that while the tenant had some responsibilities, the primary duty to ensure the structural integrity of the balcony rested with the landlord. The court considered the principles of contributory negligence and the relevant provisions of the *Civil Liability Act 2002* (NSW) and the *Law Reform (Miscellaneous Provisions) Act 1965* (NSW) and *1946* (NSW) in apportioning liability and determining entitlements to indemnity and contribution.
The court made orders regarding the apportionment of liability between the landlord and the managing agent, and the landlord's entitlement to contractual indemnity from the managing agent, with adjustments for contributory negligence. The tenant was found not liable to contribute to the managing agent's liability.