Libra Collaroy Pty Ltd v Bhide - [2017] NSWCA 196

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Hearing dates: 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
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Wrongs Act 1936 (SA)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Ahluwalia and Ors v Robinson [2003] NSWCA 175
Aldred v Stelcad Pty Ltd [2015] NSWCA 201
Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7
ASF Resources Ltd v Clarke [2014] NSWSC 252
Astley v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6
Austin v Bonney [1999] 1 Qd R 114
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Barisic v Devenport [1978] 2 NSWLR 111
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) 14 ANZ Ins Cas ¶61-678; (2006) Aust Torts Reports ¶81-830
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Bracks v Smyth-Kirk [2009] NSWCA 401; (2009) 263 ALR 522
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; [1966] HCA 3
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226; [1986] HCA 14
Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Fabre v Lui [2015] NSWCA 157
Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588; [1965] HCA 26
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Hanson v Wearmouth Coal Company Ltd [1939] 3 All ER 47
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Laresu Pty Ltd v Clark [2010] NSWCA 180
Le Cornu Furniture & Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37
Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94
Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39
Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34
Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407
Oxley County Council v Macdonald [1999] NSWCA 126
Pantalone v Alaouie (1989) 18 NSWLR 119
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; [1985] HCA 3
Pennington v Norris (1956) 96 CLR 10; [1956] HCA 26
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Reinhold v New South Wales Lotteries Corporation (No 2) (2008) NSWLR 726; [2008] NSWSC 187
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14; [2002] 1 WLR 1397; [2002] 2 All ER 801
Sakoua v Williams (2005) 64 NSWLR 588; [2005] NSWCA 405
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Smith v South Western Sydney Local Health Network [2017] NSWCA 123
Sparks v Van Den Ham [2003] WASCA 143
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; [2009] Aust Torts Reports ¶82 043
Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Walter H Wright Pty Ltd v Commonwealth [1958] VR 318
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65
Texts Cited: John G Fleming, The Law of Torts, (9th ed, LBC Information Services, 1998)
Second Reading Speech, Law Reform (Miscellaneous Provisions) Amendment Bill, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 November 2000
Category: Principal judgment
Parties: Libra Collaroy Pty Ltd (Appellant)
Deepak Anant Bhide (First Respondent)
Alka Bhide (Second Respondent)
Joanne Gillies (Third Respondent)
Representation:
Counsel:
D Priestley SC (Appellant)
RJ Brender (First and Second Respondents)
D O’Dowd (Third Respondent)
Solicitors:
Gilchrist Connell Lawyers (Appellant)
Anderson & Sjoquist Lawyers (First and Second Respondents)
Curwoods Lawyers (Third Respondent)

File Number(s): 2016/65770; 2016/229209
Publication restriction: The street address of the property has not been reproduced in accordance with the Court’s policy on identity theft prevention.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Before:

Curtis DCJ

File Number(s):

2014/4641; 2014/4657; 2014/4687; 2014/4699; 2014/69433

HEADNOTE

[This headnote is not to be read as part of the Judgment]

Libra Collaroy Pty Limited trading as Elders Real Estate (Elders), appealed from a decision of the District Court in which his Honour Judge Curtis found Elders was liable for damage suffered by four people (plaintiffs) who were injured in the collapse of a balcony on the evening of 15 June 2012 at a residential property in Collaroy (property). The balcony collapsed, in short, due to weathered deterioration of the structural beams and metal fixings.

Elders managed the property pursuant to a Management Agreement executed on 14 June 2005 with its owners, the first and second respondents, Mr and Mrs Bhide. At the time of the balcony’s collapse, the third respondent, Ms Joanne Gillies, was the tenant. The four plaintiffs were Ms Gillies’ daughter, Sanchia Gillies, and her three friends.

The Bhides bought the property in 1999. It was a two-storey residence, constructed in 1995, with a timber balcony on the north side of the upper level (balcony). The balcony was constructed with untreated Oregon timber which, due to its lack of durability, is unsuited for weather-exposed structural members and is highly prone to rot.

On 9 November 2005, the Bhides entered into a tenancy agreement to lease the house to Ms Gillies and her husband, Mr Gillies. When the lease was renewed on 10 December 2010, Ms Gillies became the sole lessee.

In the years following the purchase of the property, a number of issues arose concerning the state of repair of the walking surface of the balcony and, too, concerning the structural adequacy of the balcony. Early in the piece with the Bhides’ approval, Elders arranged for it to be braced to minimise sideways movement. Thereafter, periodically Elders obtained quotes for repairs to the balcony which they provided to the Bhides. In 2001, a quote noted “top edges of Oregon supporting beams are rotting out”; in 2004, another quote advised that “repairing the joists [as opposed to replacing the deck was] a temporary measure”; in 2007, another quote recorded that the “supporting timbers [could]…fail over time.” In 2010, Mr Gillies and Ms Gillies communicated to Elders their concerns about the structural adequacy of the major supporting cross beam holding the upper deck contending it had substantial wood rot which was not easily noticed and required inspection. In February 2012, Ms Gillies complained in an email to Elders both about the deterioration in the walking surface of the deck and, too, that the “[metal bracing] underneath [the deck] is also precarious and the deck is not fully supported.” Elders arranged for a carpenter to inspect the deck with a view to the walking surface being replaced. The carpenter did not have the expertise, and was not retained, to advise on the structural adequacy of the balcony. By the time of the balcony’s collapse, the carpenter had provided two quotes to Elders, one to repair the walking surface of the deck, the other to construct a pergola over it to prevent it from getting wet. The quotes were forwarded to the Bhides on the morning the balcony collapsed.

Each plaintiff commenced proceedings against Elders and the Bhides seeking damages for personal injury (plaintiffs’ proceedings). Ms Gillies also brought proceedings against Elders and the Bhides claiming to have suffered psychiatric injury as a consequence of seeing her daughter injured at the accident scene (Ms Gillies’ proceedings). A number of cross-claims were filed as between Elders, the Bhides, Mr Windred (a carpenter who did some maintenance work on the deck of the balcony in 2008) and Ms Gillies (only in the plaintiffs’ proceedings). The details of these cross-claims are set out below. As the primary judge’s finding in Mr Windred’s favour is not challenged, it is not necessary to set out the details of any cross-claims against him.

In Ms Gillies’ proceedings, there were two cross-claims. First, the Bhides cross-claimed against Elders seeking, relevantly, indemnity by reason of Elders’ failure to use reasonable care and skill in managing the property and for its breach of the Management Agreement including for breach of an implied term to use reasonable care and skill in performing the work for which it provided. They also sought contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (1946 Act) in respect of any liability to Ms Gillies. Secondly, Elders brought a cross-claim seeking indemnity from the Bhides pursuant to an indemnity provision in the Management Agreement and also contribution from them as joint tortfeasors pursuant to s 5 of the 1946 Act.

In the plaintiffs’ proceedings, there were two relevant cross-claims. First, the Bhides filed a cross-claim seeking contribution from Elders and Ms Gillies pursuant to s 5 of the 1946 Act. Secondly, Elders brought a cross-claim seeking contribution from the Bhides and Ms Gillies as joint tortfeasors pursuant to, inter alia, s 5 of the 1946 Act.

In defence to the Bhides’ cross-claims, Elders pleaded that, to the extent the Bhides suffered any loss or damage in the manner particularised in their cross-claim, and if that loss or damage was due to Elders’ negligence, any damages to which they might be entitled should be reduced by reason of their contributory negligence.

All the proceedings were dealt with as one for directions and hearing purposes. The question of liability was determined separately in advance of damages issues.

The primary judge found that, by reason of the Management Agreement, Elders had accepted the delegation and authority to arrange repairs and maintenance in accordance with the Bhides’ obligations to repair the property and, accordingly, owed to the plaintiffs a duty to exercise reasonable care in maintaining the premises. His Honour held that in the light of the balcony’s maintenance history, and pursuant to the express terms of the Management Agreement, Elders was liable in negligence to each of the plaintiffs and Ms Gillies. His Honour also held that the collapse of the balcony resulted from breach of the contractual duty to exercise reasonable skill and care Elders owed to the Bhides pursuant to the Management Agreement.

The primary judge held that the Bhides had discharged their duty of care to the plaintiffs by engaging a competent contractor to fulfil that duty. He also held that the Bhides were liable to Ms Gillies in contract for breach of their contractual obligation under the tenancy agreement to maintain the premises in a reasonable state of repair. However, he held that the Bhides were entitled to a contractual indemnity from Elders in respect of this liability. He rejected Elders’ submission that it was entitled to indemnity from the Bhides pursuant to an indemnity provision in the Management Agreement.

The primary judge held that Ms Gillies had discharged the duty of care she owed the plaintiffs as occupier of the property by complaining about the level of maintenance on the property and seeking that the agents intervene.

Accordingly, the primary judge concluded that, if the plaintiffs and Ms Gillies had suffered injuries, Elders was solely liable to them in tort, the Bhides were only liable to Ms Gillies in her case for breach of contract, for which they were entitled to a contractual indemnity from Elders, and the Bhides and Ms Gillies were not liable on Elders’ cross-claims.

On appeal, Elders did not challenge the finding that it was negligent, nor the finding that it was not entitled to rely upon the indemnity provision. However, it contended that the primary judge erred in determining that the Bhides and Ms Gillies were not also liable as tortfeasors, and in determining that the Bhides were entitled to a contractual indemnity in respect of their liability to Ms Gillies for breach of the tenancy agreement.

The Bhides filed a notice of contention contending that the primary judge ought to have held the contractual indemnity to which they were entitled from Elders extended to any liability to the plaintiffs.

The principal issues on appeal were:

(i) Whether the primary judge erred in finding the Bhides and Ms Gillies not liable to the plaintiffs, and hence not liable to Elders on its cross-claims.

(ii) Whether the primary judge erred in finding:

a. that the Bhides discharged their duty of care to the plaintiffs by engaging a competent contractor (being Elders) to fulfil the duty of care they owed to the plaintiffs; and

b. that Ms Gillies discharged her duty as occupier by complaining to Elders about the condition of the balcony.

(iii) Whether the primary judge failed to consider and apply the principles of s 5B of the Civil Liability Act 2002 (NSW) (CLA) to Elders' respective cases against the Bhides and Ms Gillies.

(iv) Whether the primary judge erred in finding that the Bhides were entitled to contractual indemnity from Elders with respect to their liability to Ms Gillies.

(v) Whether the primary judge erred in not finding that the Bhides were entitled to contractual indemnity from Elders with respect to their liability to the plaintiffs.

(vi) Whether, insofar as the Bhides were entitled to recover pursuant to the contractual indemnity any amounts for which they might be jointly liable with Elders to the plaintiffs (including Ms Gillies), their entitlement to recover should be reduced by reason of their contributory negligence pursuant to s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (1965 Act).

(vii) Whether, in the event they were found to have breached their respective duties of care, to what extent the Bhides and Ms Gillies should be found liable to contribute to any damages for which Elders is found liable to the plaintiffs.

Held, per McColl JA (Meagher JA and Ward JA agreeing), allowing the appeal and upholding the notice of contention:

As to issues (i) and (ii)

(1) The Bhides breached their duty of care to the plaintiffs and Ms Gillies:

a. Although they initially delegated their duty of care to Elders, they ought, at least by 2010, to have formed the view that Elders had not discharged and was not discharging its delegated duties competently. (at [193]); [211] – [216])

b. By either 2008, or at the latest 2010, a reasonable person in the Bhides’ position ought expressly to have instructed Elders to engage an expert to investigate the structural integrity of the balcony and, if necessary, to have taken steps to have rectified any deficiency identified, including, if necessary, by replacing the balcony. (at [216])

c. In failing to prevent anybody from having access to the balcony pending remedial work.

Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 discussed.

Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16; Laresu Pty Ltd v Clark [2010] NSWCA 180 applied.

(2) Ms Gillies breached the duty of care she owed the plaintiffs in that a reasonable person in Ms Gillies' position who had formed the opinion she expressed in her February 2012 email, concerning the precarious support for the deck, ought to have refused anybody access to the deck until the position as to its structural integrity had been properly investigated and the patent defects Mr Gillies drew to her attention, which she herself observed, and any latent defects revealed on investigation, had been rectified. (at [233])

As to issue (iii)

(1) The proper starting point for the inquiries as to breach and causation the case posed accordingly was the relevant provisions of the CLA. (at [194])

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 applied.

(2) The primary judge erred in failing to apply the provisions of the CLA, the effect of which was that his Honour failed to identify the relevant risk of harm and whether either the Bhides and/or Ms Gillies knew, or ought to have known of it (s 5B(1)(a)) and, further, failed to apply the standard s 5B(1)(c) imposed to test the question of their breach by reference to what precautions a reasonable person in their respective positions would have taken in the circumstances, including by reference to the matters set out in s 5B(2). (at [196])

(3) Accurate identification of the actual risk of harm the plaintiffs and Ms Gillies faced was necessary as it was only through the correct identification of the risk that his Honour could determine what a reasonable response to that risk would be. (at [197])

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 applied.

As to issue (iv)

(1) The primary judge did not err in finding that the Bhides were entitled to contractual indemnity from Elders with respect to their liability to Ms Gillies. (at [249])

Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588; [1965] HCA 26; Astley v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6 applied.

Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145; Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 referred to.

As to issue (v)

(1) The primary judge ought also to have held that the Bhides were entitled to contractual indemnity from Elders with respect to their liability to the plaintiffs. (at [225] – [226])

As to issue (vi)

(1) Insofar as the Bhides were entitled to recover pursuant to the contractual indemnity any amounts for which they might be jointly liable with Elders to the plaintiffs (including Ms Gillies), their entitlement to recover should be reduced by reason of their contributory negligence pursuant to s 9 of the 1965 Act to the extent of thirty per cent. (at [271] – [276])

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10; Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 applied.

Astley v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6 discussed.

ASF Resources Ltd v Clarke [2014] NSWSC 252; Reinhold v New South Wales Lotteries Corporation (No 2) (2008) NSWLR 726; [2008] NSWSC 187 referred to.

As to issue (vii)

(1) Section 5(1)(c) of the 1946 Act disentitled Elders from recovering contribution from the Bhides having regard to the fact the Bhides are entitled to a contractual indemnity from Elders in respect of the same damage, being their liability as joint tortfeasors to the plaintiffs and Ms Gillies. (at [287])

(2) Ms Gillies’ liability to contribute to any damages for which Elders is found liable to the plaintiffs should be assessed at twenty per cent. (at [291])

**********

Judgment

The pleadings - paragraph 10

Statement of the case - paragraph 19
Liability judgment - paragraph 78
Costs judgment - paragraph 102
Issues on appeal - paragraph 109
Elders’ submissions
Negligence - paragraph 118
Contractual indemnity - paragraph 137

The Bhides’ submissions
Negligence - paragraph 154
Contractual indemnity - paragraph 161

Ms Gillies’ submissions - paragraph 170
Consideration
Duty of care - paragraph 176
Civil Liability Act - paragraph 194
Breach: the Bhides - paragraph 200
Breach: Ms Gillies - paragraph 227
Breach: conclusion - paragraph 236

Contractual indemnity - paragraph 237
Contributory negligence - paragraph 251
Contribution: the Bhides - paragraph 277
Contribution: Ms Gillies - paragraph 289
Conclusion - paragraph 293
Orders - paragraph 303

McCOLL JA: The applicant, Libra Collaroy Pty Limited trading as Elders Real Estate (Elders), seeks leave to appeal against a decision of his Honour Judge Curtis sitting in the District Court of New South Wales in which his Honour found that Elders was liable for damage suffered by four people (plaintiffs) who were injured in the collapse of a balcony on the evening of 15 June 2012 at a residential property in Collaroy (property). [1] The balcony collapsed, in short, because of weathered deterioration of the structural beams and metal fixings.
1. Gillies v Bhide (District Court (NSW), Curtis DCJ, 1 October 2015, unrep).
Elders managed the property pursuant to an Exclusive Management Agency Agreement Residential executed on 14 June 2005 (Management Agreement) with its owners, the first and second respondents, Deepak and Alka Bhide (the Bhides, unless the context otherwise requires). At the time the balcony collapsed, the property was leased to the third respondent, Ms Joanne Gillies.
The plaintiffs, Ms Gillies’ daughter, Sanchia Gillies, Scott Baker, Wade Farmer and Naomi Monfrooy, each commenced separate proceedings in the District Court against Elders and the Bhides seeking to recover damages in respect of their injuries. Ms Gillies commenced proceedings for the same purpose against Elders and the Bhides. She was not on the balcony when it collapsed, but claimed to have suffered psychiatric injury as a consequence of seeing those injured, one of whom was her daughter, in pain and fear at the accident scene. There were a number of cross-claims as between Elders, the Bhides, Mr Windred (a carpenter who did some maintenance work on the deck of the balcony in 2008) and Ms Gillies which I outline later in these reasons. All the proceedings were dealt with as one for directions and hearing purposes. On 8 April 2015 a Registrar of the District Court directed that the question of liability be determined separately in advance of damages issues in the proceedings.
The competing contentions as identified in the pleadings are referred to in more detail below. In short, however, the primary judge held, and consequentially ordered, that:

In the plaintiffs’ proceedings:

the balcony’s collapse resulted from the breach of the duty of care Elders owed to the plaintiffs to exercise reasonable skill and care in maintaining the balcony and not from any breach of duty owed by Mr Windred, Ms Gillies or the Bhides;

his Honour gave verdict in favour of each of the plaintiffs against Elders and judgment for the Bhides against each plaintiff.

In Ms Gillies’ proceedings:

that the balcony’s collapse resulted from breach of the contractual duty to repair the Bhides owed Ms Gillies pursuant to a residential tenancy agreement (tenancy agreement) between them;

that the balcony’s collapse resulted from breach of the contractual duty to exercise reasonable skill and care Elders owed the Bhides pursuant to the Management Agreement;

that the balcony’s collapse resulted from breach of the common law duty of care Elders owed Ms Gillies;

that the Bhides were entitled to a contractual indemnity from Elders in respect of their liability to Ms Gillies for breach of the tenancy agreement;

his Honour did not enter judgment in Ms Gillies’ favour as the Bhides and Elders asserted she had suffered no damage as a result of their breach of duty and that it was premature to do so.

On Elders’ cross-claim against the Bhides and Mr Windred in the Gillies proceedings, judgment for the Bhides and Mr Windred against Elders.

Elders does not challenge the primary judge’s finding that it was negligent in each of the plaintiffs’ and Ms Gillies’ proceedings. However, it contends that his Honour erred in determining that the Bhides and Ms Gillies were not also liable as tortfeasors, and in determining that the Bhides were entitled to a contractual indemnity in respect of their liability to Ms Gillies for breach of the tenancy agreement.
Elders seeks to recover contribution from the Bhides and Ms Gillies to the extent that the Court considers it just and equitable pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (1946 Act). Insofar as the Bhides are concerned, and in respect of the findings that they were entitled to a contractual indemnity, it seeks apportionment by reason of what it contends was their contributory negligence in accordance with s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (1965 Act).
Leave to appeal is required because the primary judge’s decision did not determine all the rights of the parties that were at issue and left undetermined the question whether any, and what, damages are payable. [2]
2. Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 (at 768) per Gibbs CJ (Murphy and Wilson JJ agreeing); Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 (at [73]) per Gummow and Bell JJ.
Leave to appeal should be granted, as the case involves the final determination of the parties’ liability, and resolution of that issue determines the parties who will participate in the damages hearing(s) which have yet to proceed and the manner in which the burden of any damages awards should ultimately be borne.
For the reasons that follow, I would allow the appeal.

The pleadings

The appeal papers included what appear to be all the pleadings in Ms Gillies’ proceedings and the pleadings in one of the plaintiff’s proceedings. I have assumed the latter are representative of the pleadings in the other three plaintiffs’ proceedings.
As I have said, Ms Gillies sued Elders and the Bhides. In her statement of claim she pleaded, relevantly, that she had suffered injury, loss and damage by reason of the negligence of the Bhides and Elders in failing properly to inspect and repair the balcony. She also alleged the Bhides had breached the tenancy agreement in failing to maintain the premises fit for habitation and in a reasonable state of repair, in consequence of which she was injured and claimed compensatory damages.
In defence to her claim, Elders pleaded, among other matters, that she was guilty of contributory negligence in a number of respects, including failing to take reasonable steps to ensure the safety of persons on the balcony and permitting the use of the balcony when she knew, or ought to have known, that it posed a risk of injury.
There were two cross-claims in Ms Gillies’ proceedings. First, the Bhides brought a cross-claim seeking, relevantly, indemnity from Elders by reason of its failure to use reasonable care and skill in managing the property and breach of the Management Agreement including for breach of an implied term to use reasonable care and skill in performing the work for which it provided in the event they were found liable to her in any of the proceedings (First Bhides’ cross-claim) and contribution pursuant to s 5 of the 1946 Act in respect of any liability to Ms Gillies. Insofar as the breach of the Management Agreement was concerned, the Bhides pleaded that they were entitled to be indemnified by Elders. They also cross-claimed against Mr Bruce Windred, a carpenter who performed maintenance work on the balcony in 2008 seeking, again, to recover from him any damages for which they might be found liable to Ms Gillies. It is not necessary to set out the details of this cross-claim as the primary judge found in Mr Windred’s favour, a finding which is not challenged.
In defence to the Bhides’ cross-claim in the Gillies proceedings, Elders pleaded that, to the extent the Bhides suffered any loss or damage in the manner particularised in their cross-claim, and if that loss or damage was due to Elders’ negligence, any damages to which they might be entitled should be reduced by reason of their contributory negligence
Secondly, Elders brought a cross-claim seeking indemnity from the Bhides pursuant to an indemnity provision in the Management Agreement and also contribution both from them and from Mr Windred as joint tortfeasors pursuant to s 5 of the 1946 Act (First Elders’ cross-claim). Elders relied upon the plaintiffs’ pleadings to found its allegations of breach of duty of care. Those particulars included allegations that the balcony was not properly inspected, not kept in a state of proper repair and knowledge of those matters whether actual, constructive or by reason of reckless indifference, that the balcony had not been properly maintained and allowing the balcony to be used despite knowing it was in a state of disrepair.
The plaintiffs each sued the Bhides and Elders. There were two relevant cross-claims in their proceedings. The first was filed by the Bhides seeking contribution from Mr Windred, Elders and Ms Gillies pursuant to s 5 of the 1946 Act (Second Bhides’ cross-claim). Once again, insofar as the Bhides cross-claimed against Elders, they claimed indemnity in respect of Elders’ breach of the Management Agreement for any liability to the plaintiffs and Ms Gillies, the measure of damage for which was any damages, interest or costs awarded to any plaintiff and contribution pursuant to s 5 of the 1946 Act. The second cross-claim was filed by Elders seeking contribution from the Bhides, Mr Windred and Ms Gillies as joint tortfeasors pursuant to, inter alia, s 5 of the 1946 Act (Second Elders’ cross-claim).
Elders filed a similar defence to the Second Bhides’ cross-claim to that filed in the Gillies’ proceedings.
Ms Gillies did not file any cross-claims. She filed a defence to the Second Elders’ cross-claim in each of the plaintiffs’ proceedings denying the allegations and particulars of negligence against her and denying the Bhides’ cross-claim in Elders’ entitlement to contribution. She did not file a defence to the Second Bhides’ cross-claim in each of the plaintiffs’ proceedings.

Statement of the case

There were six lay witnesses: Mr and Mrs Gillies, Mr and Mrs Bhide, Mr Windred and Ms Hopton, a former Elders’ employee and the property manager at Elders with responsibility for the property from about November 2011 to September 2012. The liability hearing proceeded on the basis of statements given by each of the lay witnesses and their cross-examination. Three experts gave concurrent evidence. [3]
3. Mr Windred prepared an outline of evidence which became an exhibit in the proceedings, but was not reproduced in the appeal papers, presumably because no party sought to pursue any case against him. There were also statements from each plaintiff, but none was required for cross-examination. The statements were also not reproduced in the appeal papers. None of the experts’ reports were included in the appeal papers.
The liability hearing came before the primary judge on 29 September 2015. His Honour granted leave for Ms Gillies to have separate legal representation by reason of the two capacities in which she was before the Court, both as plaintiff in her proceedings and alleged joint tortfeasor for the purposes of the cross-claims in the plaintiffs’ proceedings.
In his reasons, the primary judge referred to much of the evidence concerning the construction of the balcony and its lengthy maintenance history. However, the evidence was more extensive than that to which his Honour referred. It is necessary, in order to deal with the appeal, to set out some evidence to which his Honour did not refer.
In 1999, the Bhides bought the property through Elders, presumably as the vendor’s agent. The house on the land is a two-storey residence with a timber balcony on the north side of the upper level (balcony) and a lower deck extending out from the first level.
On 20 September 1999, the Bhides entered into an agency agreement with Elders in respect of the management and leasing of the house (1999 Management Agreement). The 1999 Management Agreement was superseded by the Management Agreement. The Management Agreement was still on foot at the time of the relevant events.
According to Ms Hopton’s evidence, Elders was a network of real estate agencies with over 320 offices operating in all capital centres, major regional and rural centres across Australia. She agreed that Elders had expertise in property management and, among other matters, was responsible for protecting rental property from damage and other unfortunate circumstances. She accepted that, as property manager, she acted as the main point of contact with tenants and dealt with issues they raised to mitigate problems that arose. She also accepted that Elders had access to a “stable of tradesmen” including builders, engineers and architects and, generally, that all sorts of building and construction expertise was available to her.
The Management Agreement relevantly provided:

“1.    The Principal, who warrants that they have authority to enter into this Agreement hereby appoints and authorises the Agent and the Agent’s employees from time to time exclusively to let and manage the premises in accordance with this Agreement.
4.   The agent shall be entitled to the following fees:
…
(c)    for the provision of all ongoing usual property management services in respect of the premises:
(i)   a management fee of 4.4% (incl GST) of all monies collected on behalf of the landlord; and

…
12.    The Agent is authorised to arrange and pay for repairs and maintenance to be done in accordance with the Principal’s obligations or as otherwise instructed provided that any expenditure in excess of $ for any item shall not be incurred without prior approval of the Principal except in an emergency and where the repairs are urgently required. [4]
17.   The Principal undertakes to indemnify and keep indemnified the Agent against all actions suits, proceedings, claims, demands, costs and expenses whatsoever which may be taken or made against the Agent in the course of or arising out of the performance or exercise of any of the powers duties or authorities of the Agent” (indemnity provision). [Emphasis added.]
4.    The word “proper” appeared before the word “performance” in the indemnity provision (cl 16) in the 1999 Management Agreement.

On 9 November 2005 the Bhides entered into the tenancy agreement to lease the house to Ms Gillies and her husband, Mr Malcolm Gillies. Ms Gillies became the sole lessee when the lease was renewed on 10 December 2010. Pursuant to cl 12 of the tenancy agreement, the Bhides agreed to make sure the premises were reasonably clean and fit to live in and to keep the premises in reasonable repair considering their age, the rent and the prospective life of the premises. Pursuant to cl 14.1, the Gillies agreed not to “renovate, alter or add to the residential premises without the [Bhides’] written permission”. Pursuant to cll 16 and 17, the Bhides agreed to pay the Gillies any reasonable costs (not exceeding $1,000) incurred for making urgent repairs, among others, in respect of “any fault or damage that causes the premises to be unsafe or not secure”.
The balcony was constructed in 1995 with untreated Oregon timber which, due to its lack of durability, is unsuited for weather-exposed structural members and is highly prone to rot. [5] As the following narrative reveals, many of the problems identified following the Bhides’ purchase of the property related to the deck of the balcony, that is to say, the walking area most exposed to the elements. I use the word “deck” to refer to that area and “balcony” to refer to the entire structure. It is not clear that those who inspected or commented about the structure prior to the accident drew that distinction.
5. Liability judgment (at [5]).
A building inspection the Bhides obtained prior to buying the property observed that the balcony was “in generally satisfactory condition for age and type, however top edges of softwood support joists are vulnerable to fungal decay. We recommend preservative paint protection to all exposed softwood timbers” [emphasis in original]. The advice as to painting was repeated in the report’s summary, identifying items recommended for attention as part of ongoing maintenance.
By June 2001, the deck was in poor condition. Elders arranged for repairs to be effected by Pittwater Maintenance Service. This included removing and replacing the worst of rotting deck boards and digging out rotting timber from parts of the deck bearers exposed by removing deck boards. In the notes section of its invoice for the work done dated 14 June 2001, Pittwater Maintenance Service recorded:

“NOTE: Top deck is in very poor condition. All the deck boards are rotting and are badly affected with fungus.
Top edges of Oregon supporting beams are rotting out as water is lying under deck boards.” [Emphasis added.]

In cross-examination, Mr Bhide accepted that he received and read this invoice.
Notwithstanding this note, in its property inspection report dated 19 December 2002, Elders wrote under the section “Recommended Repairs/Renovations”, “Nil to Mention”.
In April 2003, Pittwater Maintenance Service provided a quote for various matters including, bracing the balcony to minimise sideways movement. This was undertaken by the installation of metal cross braces under the deck.
On 10 November 2004 Northern Group (Aust) Pty Ltd (Northern Group) provided two quotes, one to repair the balcony, in the amount of $1,784.38, for repairing the joists (the bearing beams under the walking planks) and another to “replace the deck” with one made of pine, in the amount of $5,294.63. The quote indicated that there was “wood rot in the top of 50% of the joists.” It stated that the cheaper option of repairing the joists was a temporary measure. [6] Again, in cross-examination, Mr Bhide accepted that he received and read this quote, but had not accepted it.
6. In his judgment (at [10]), the primary judge erroneously attributed this quote to Pittwater Maintenance Service.

On 8 December 2004, Pittwater Maintenance Service advised that the “[d]eck has wood rot to the top of many of the joists [which has] caused the boards to sag or lift in various places.” It provided a quote in the amount of $1,542.00 to replace the worst of the joists with new treated pine joists and to saddle the remainder with treated pine bolted to the existing floor joists to provide support for the floor boards. It advised this was the alternative solution to dismantling and building a new deck. Mr Bhide accepted in cross-examination that he received and read this invoice. Elders accepted this quote and Pittwater Maintenance Service performed the work. From the date of its invoice, it appears the work was carried out in late February 2005.
On 9 November 2005, the Bhides entered into the tenancy agreement with Ms and Mr Gillies.
On 26 March 2007 Mr and Ms Gillies informed Elders by email that the “upper timber deck is showing signs of wood rot due to exposure to the weather”. Three days later, on 29 March 2007, Elders conducted a periodic inspection the report for which ticked the box advising the property was “in a clean and tidy condition”.
On 25 May 2007 Elders conducted a further periodic inspection, the report of which also noted for the Bhides’ “information and consideration” the “upper timber deck is showing signs of wood rot and needs attention”. It asked the recipient to contact Elders to discuss the matter. In response to the report, Mr Bhide said that, in accordance with usual practice, Elders instructed contractors to inspect the property and provide a quote.
On 18 and 20 June 2007 Mr Graham of Elders sought quotes from Twenty Four Seven Building Maintenance Service and North Property Repairs & Maintenance in respect of rotting timber boards “on the balcony”.
On 22 June 2007 North Property Repairs & Maintenance provided a quote which stated, relevantly:

“The decking timber has a large amount of wood rot, approximately 60% of the timber decking is completely rotted to a dangerous level, another 25% has a limited life of less than 12 months before it becomes dangerous, and the other 15% perhaps 2 years life left.
If the decking timber is not replaced it could fail whilst being used and a person falling through to the ground is likely. The rotting timber decking could also cause moisture etc to build up between the current decking and timber joists (supporting timbers) and therefore cause this timber to fail over time.” [Emphasis added.]

The quote from Twenty Four Seven Building Maintenance Services recommended replacing the decking timber. It noted that the bearers appeared sound, “however will need to be checked upon removal of decking timber.”
On 3 July 2007 Ms Bobanovic, then apparently the property manager at Elders responsible for the property, emailed Mr Bhide advising him that she had checked the warranties on both the above quotes (referring to each by name) and asked if he sought any more information. In response Mr Bhide sought “exact details … in writing” of both quotes. Mr Bhide was not taken to this document in cross-examination. However, Mr Priestley submitted in this Court that an inference should be drawn from that exchange of emails that the Bhides saw both quotes. I would accept that submission.
Neither quote was accepted, it appears because Mr Bhide was dissatisfied with the warranty each provided.
On four occasions in September and October 2007, in the course of negotiating an extension to the tenancy agreement, Mr Gillies referred in emails to Elders to the fact that there were patches/areas of wood rot in the deck and his understanding that the Bhides would attend to its repair.
Between November 2007 and January 2008 Elders sought further quotes in respect of the rotting decking boards. One received from Inside Out Maintenance Services, indicated that the “[d]ecking is rotting, front steps are broken. Both are an OH&S hazard, will need replacing.” The primary judge inferred that, as the quote was for $5,500.00, the work envisaged was the replacement of the entire deck and supports. [7]
7. Liability judgment (at [17]); one of the experts, Mr Cooke, had given evidence to that effect during the concurrent hearing.
On 12 March 2008, Ms Bobanovic wrote to the Bhides in the following terms:

“Re: Decking Repair
Property: [XXX] Collaroy
We write in regards to the ongoing issue with the deck at your abovementioned property.
Most of the deck flooring is rotting; this needs to be rectified immediately. We have obtained 2 quotes for this repair – please see enclosed. If you have your own tradesperson I will be happy arrange [sic, as in original] access with the tenant for a quote.
Currently the deck is a major safety issue – any injury incurred on this deck may result in legal action against you.
Please contact the undersigned urgently to discuss this matter.”

Mr Bhide was asked whether at the time he received this letter and in the light of the history of complaints he considered somebody should inspect the structure of the deck. His response was “if that was required. I was waiting for advice from the agent, what needs to be done.” He said he had contacted Ms Bobanovic and asked her to get a quote to fix the problem. The evidence does not disclose why the quote obtained in late 2007 was not accepted.
It appears to have been common ground that Mr Bhide knew Mr Windred through their respective sons’ sporting endeavours and suggested to him, or to Elders, that he may quote for the work Elders was recommending. On 9 April 2008, Elders asked Mr Windred to provide a quote for replacing the decking boards. On or about 16 April 2008, he submitted a quote which included not only replacing the decking, but also to “replace rotted 135 by 35 deck roof beams …”. On 7 May 2008 Mr Bhide instructed Elders to accept his quotation.
Mr Windred was not licensed to carry out structural work to balconies. He was contracted to apply new decking boards over the existing structure. He gave evidence that when he removed the decking, he observed that the main structure had previously been worked on by way of treated pine joists being positioned on either side of the existing joints secured to the front barge. Although he accepted he was not qualified to comment on the main structure of the balcony, he said “that there were no obvious or dangerous structural deficiencies that I observed on replacing the decking boards.” He also said that “if I had seen anything that I had considered dangerous or if I had any doubt regarding the structural stability and safety of the front balcony, I would have raised this issue with the agent immediately.” [8]
8. Liability judgment (at [20]).
On 13 June 2008, Mr Gillies sent an email to Elders advising that the work to the timber deck had been completed the previous day “including the pergola, and replacing the bottom tread on the lower deck.” The email explained that “[m]y wife who’s an architect and myself have inspected at the completed work [sic, as in original] and it all appears to be in order.”
Further routine property inspections were carried out by Elders on 7 October 2008, 14 April 2009, 5 November 2009 and 5 April 2011. The inspection reports indicated to the Bhides that the property was in “a clean and tidy condition”, with no mention of any problems with the balcony or deck. [9]
9. Liability judgment (at [21] – [23]).
In late 2010, it appears that the Gillies were considering entering a new tenancy agreement. On 22 November 2010, Mr Gillies emailed Ms Penfold, then the property manager at Elders managing the property (copied to Mrs Gillies), concerning the matter. The email gave reasons why a new agreement for a further committed 12 month period would not be signed including that:

“The external timber deck has now become a safety and liability concern. The major supporting cross beam holding the upper deck on the western side has substantial wood rot. It is not easily noticed and requires inspection. It may well require replacing during the course of 2011 and we are not prepared to commit to any fixed term lease whilst this defect is outstanding.” [Emphasis added.]

Mr Gillies asked that the email be forwarded to the owner. Ms Penfold said she would do so, but advised Mr Gillies that Mr Bhide had told her that if Mr Gillies was “unwilling to sign a new lease …he would like me to give you notice to vacate the property.”

The following day Mr Gillies sent another email to Ms Penfold advising they were “prepared to consider a fresh 12 month lease once our concerns and requests … have been addressed, especially the safety and structural issues attached to the timber deck” and asked that the email be discussed with the owner.
On 26 November 2010 Mr Gillies sent an email (again copied to Ms Gillies) to Ms Penfold advising that a new lease would be signed, relevantly, “upon receiving a satisfactory report from one of our builders that the timber deck is stable and will remain so for the duration of the new lease. In good faith and at our expense we are arranging the inspection as soon as possible next week to have the supporting beam checked for its structural safety based on the extent of the current wood rot and the rate at which it may progress during the term of the lease if left unattended by the Owner.” The email concluded by saying “we will keep you advised.”
On 6 December 2010, Ms Gillies emailed Ms Penfold at Elders advising that the 12 month lease would be signed in her name only and stating:

“We will pay for an inspection of the structural beam at our cost as it has wood rot through it all. However, it could be structurally OK in the short-term. We don’t know till we get the report back.
If the structural beam does indeed need fixing – we are OK with living there still whilst it’s being fixed and will not access the balcony during affixing. If it doesn’t need fixing then we are OK with what the report states. As a registered Architect it is apparent to me that it is wood rot – but it may not be as extensive as we think (or otherwise) until we get the building report.
This structural beam will have to be inspected regardless of wether [sic, whether] we tenants there or not as its wood rot on a structural beam. So it’s it our cost to do that for the landlord [sic, as in original].” [Emphasis added.]

Ms Penfold forwarded Ms Gillies’ email to Mr Bhide on 6 December 2010 and asked him to “let me know your thoughts.”
On 8 December 2010 Mr Bhide emailed Ms Penfold apparently in response to her email of 6 December 2010. He did not refer to Ms Gillies’ comments about the structural beam. He advised Ms Penfold that she needed to write to the tenants that they needed to sign the lease by the following weekend or they would receive a 60 day notice. Ms Penfold responded the same morning advising that she had communicated Mr Bhide’s advice to the tenant. Mr Bhide said that after his conversation with Ms Penfold, he “never heard about any building quote”, but that “if the work is required then Elders get the quote and we fix the problem.”
Mr and Mrs Gillies separated in late 2009. He moved out of the property but visited his children there following his departure. On 10 December 2010 Ms Gillies entered into a new tenancy agreement with the Bhides. Ms Gillies accepted in cross-examination that she had not arranged an inspection as referred to in her 6 December 2010 email. She did not advise Elders of this.
There is no evidence that Mr Gillies’ email of 26 November 2010 was sent to Mr Bhide. He was not cross-examined to suggest it was. Indeed, an exchange between Mr Priestley and the primary judge in the course of Mr Bhide’s cross-examination about the events of 2010 appeared to recognise that there was no evidence that Mr Gillies’ email had been sent to him. Mr Bhide’s only evidence in this respect was to the effect that any work at the property was not related to entry into a lease, he had agreed that if the tenants signed the lease they could do an inspection and, in effect, that the tenants then appeared to have let the issue go.
As I have said, between about November 2011 and September 2012, Ms Hopton was the property manager at Elders responsible for the management of the property. Most, if not all, of her dealings were with Mr Bhide by telephone or email.
Ms Hopton had no qualifications in property management when she joined Elders. She learned on the job with another agent sitting beside her. Her training included being told that when tenants raised concerns she had to consider what type of tradesman might be able to deal with those concerns. At the time she started to manage the Bhides’ property, she was responsible for hundreds of files.
On 11 January 2012, Mr Gillies sent Ms Gillies an email saying:

“IMPORTANT – Can you take a look at the underside of the timber deck. I noticed when standing at the top of the wooden stairs leading to the front door that there was some rotting and warped timber. It’s the long structural support beam that runs along the length of the front underside of the deck which the joints (that support the decking timber) sit on. This timber beam is weather damaged and warped, the nails have pulled out in places and the metal pins have also rusted, hence it may have lost some of its load bearing capacity and will eventually give way.” [Emphasis added; underlined emphasis in original.]

This email was not admitted as against the Bhides as there was no suggestion they had received it. It was admitted only as against Ms Gillies. When cross-examined about it, Ms Gillies said she also observed the front of the deck was weather damaged and warped, but she had no concern it would eventually give way. She wanted Elders to inspect it. While she understood Mr Gillies was warning that the nailing plate attached to the post would eventually give way, she said that “not in my wildest dreams would I have thought the whole thing would collapse, and I did raise it with Elders continually.”
Nevertheless, on 24 February 2012 Ms Gillies sent an email to Ms Hopton stating:

“The front balcony deck had rotting decking and was replaced some 1-2 years ago but was NEVER sealed at all!! I did insist on it being sealed (knowing as an Architect that this is mandatory) but was told by Elders that owner did not want to spend the money on sealing it. A gap was never left as a 3-4mm requisite gap fro [sic, as in original] timber expansion/contraction. The result is now bad as the timber is buckling and rotting again and is unsafe for us to walk on during rainy periods of which we’ve had a lot of recently. I’ve slipped twice myself as the scunge on top has rendered it extremely slippery due to the timber not being sealed or the proper gap being left in construction. Also the timber strutting underneath is also precarious and the deck is not fully supported.” [Emphasis added.]

In cross-examination, Ms Gillies explained that her reference to “timber strutting” should be read as “metal bracing”.
Elders kept the maintenance records relating to the house in a paper file to which Ms Hopton had access. However, Ms Hopton said that she did not “study it” when she took up her duties as property manager for the property. At the time she received Ms Gillies’ email, she had not conducted an inspection of the property. She looked at the file. She formed the view that the work required to address Ms Gillies’ email was “replacement of the deck”. It is apparent that by that she meant the deck surface, rather than any structural aspect of the balcony. This was made apparent in her evidence that she summarised Ms Gillies’ email to her supervisor who instructed her to “get a carpenter to quote to replace the decking”.
On 28 February 2012, Ms Hopton sent an email to Mr Bhide setting out Ms Gillies’ email and asked him to “[l]et me know what you think.” The Bhides were in India when the email arrived. Mr Bhide saw it about a week after his return. In his trial statement, Mr Bhide said he needed “to know what the best way was to fix the deck.” He said that if he had been given any indication that it was in any way unsafe, he would have considered removing or replacing it, and blocking it off from use in the meantime.
Mr Bhide spoke to Ms Hopton on about 7 March 2012 about the emails. At the time of her conversation with Mr Bhide, Ms Hopton was aware from speaking to her supervisor that the deck had been replaced previously, but otherwise was unaware of the history of previous quotes, previous repairs and previous complaints by the tenant about the deck. She suggested getting a carpenter. He accepted that advice. He said he instructed her to obtain two quotes regarding the deck and to advise Ms Gillies “meanwhile to use the deck carefully”.
In cross-examination, Mr Bhide was asked whether, having read Ms Gillies’ email, he thought there should be some inspection of the deck by someone qualified to assess its structure. His response was :

“…I don’t know what and who should inspect it, it’s part of what she did for me, get the quotes to fix the problem, and she was going to get the quotes.”

Ms Gillies gave evidence that Ms Hopton inspected the premises on about 16 March 2012. She said she showed her the things that looked bad under the deck, the wood rot in the joists, the corrosiveness on the metal affixers and the lack of spacing on the decking planks.
In early April 2012, Mr Gee from Gee & Son Carpentry inspected the deck. Ms Gillies was present. She gave evidence that she assumed his qualifications were suitable to make an assessment to tell Elders and the Bhides what needed to be done. This gave her comfort with respect to her concerns about the deck.
The evidence did not reveal what instructions Ms Hopton gave Mr Gee, however it is tolerably apparent from the advice she had received from her supervisor and conveyed to Mr Bhide that it was to quote for replacing the decking. On 10 April 2012 Mr Gee gave Ms Hopton a quote:

“To remove existing decking boards and dispose of. (boards were laid with no gaps to let water escape).
To supply and fit 21 sqm of treated pine decking boards 90x19.
To oil deck to preserve timber.
To nail and punch decking boards on lower deck as nails are all proud and becoming a trip hazard. (lower decking boards are in very poor condition).”

Ms Hopton said that she conducted a periodic inspection of the property at which Ms Gillies was present on 16 April 2012. She could not recall when she prepared her statement that there was any mention of the deck, which appears to be borne out by her letter to Mr Bhide reporting on the inspection in which she noted that “we found the property to be in a clean & tidy condition” and “the tenant had no problems to report”. The letter also advised that the inspection was “not to be construed as a building … inspection”. [10]
10. It is not clear whether this was the inspection to which Ms Gillies referred, albeit dating it in March.
On 20 April 2012, Ms Gillies sent an email to Ms Hopton complaining, among other matters that “the deck has gotten worse since the rain and is hugely slippery and mossy …The carpenter who came last week to assess the top deck thought it was the bottom deck that was worse…” After this email was received, the Bhides sought a more extensive quote to put a cover over the deck so it did not get wet.
On 26 April 2012 Mr Gee provided a further quote to construct a new pergola.
The two Gee quotes were first forwarded to Mr Bhide on 15 June 2012, the morning of the day on which the balcony collapsed after he contacted Ms Hopton about not having received them. [11] In his reasons, the primary judge observed that the delay between the quotes being obtained in April 2012 and the date they were sent to Mr Bhide was irrelevant as “[t]he work commissioned from Mr Gee did not address the underlying structural problem that caused the collapse.” [12]
11. The primary judge said the quote was not accepted until 15 June 2012. However it is apparent from the evidence that that was the date Ms Hopton sent the quotes to Mr Bhide after his inquiry.
12. Liability judgment (at [27]).

When asked in cross-examination what he was doing about dealing with the structural issue in about April 2012, Mr Bhide’s response was that “[e]verybody was telling me it’s a problem with the decking, not the – if it requires structural fixing then agent will get me the quote to deal with that problem.” He accepted that the first quote from Mr Gee did not cover the structural problem and that he “had asked to get the quotes to fix the problem, which about the structural or the decking” [sic, as in original]. However, when asked in terms by the primary judge what he had said to Ms Hopton when she telephoned about Mr Gee’s carpentry quote, Mr Bhide’s response was that “we need to get the quote for the pergola so that the slippery part of the complaint the tenant made won’t happen again, that water won’t get on the deck at all.”
Mr Bhide accepted in cross-examination that the works that were outlined in the two 2012 quotes did not address the structure of the deck, although he knew by that time that people had expressed concern about that issue. He said he was content to proceed on the basis of the two quotes in the expectation that “if Gee & Sons start the replacement work, maybe they will discover something for which they can find a fix or something. Even if though this wasn’t going to fix the structural problem of the beam, they could have given a further quote to fix the problem they see after removing the boards.” He agreed that “[he] thought they should go in and do that work and if they saw any structural problem then they could tell [him] or [he] could get them to do some more work.”

Liability judgment

At the conclusion of the liability hearing on 1 October 2015, the primary judge delivered an ex tempore judgment. He granted liberty to the parties to bring in Short Minutes to reflect his reasons. This does not appear to have occurred. Rather, there was a further hearing on 16 December 2015 dealing with the questions of orders and costs, with findings and final orders made on 3 February 2016. [13]
13. Gillies v Bhide (District Court (NSW), Curtis DCJ, 3 February 2016, unrep) (costs judgment).
By reason of s 5A of the Civil Liability Act 2002 (NSW) (CLA), the proceedings were subject to Pt 1A (Negligence) of that Act. That is because the plaintiffs’ and Ms Gillies’ claims and, relevantly, the Bhides’ cross-claims seeking indemnity from Elders in respect of their liability to any plaintiff by reason of its breach of the implied term to exercise reasonable care and skill were claims for damages for harm resulting from negligence, being Elders’ and the Bhides’ failure to exercise reasonable care and skill. [14] In the case of the Bhides’ cross-claim, they relied upon both an implied term of the Management Agreement, and a common law duty of care, each of which required Elders to use reasonable care and skill. The effect of that is that all claims of that kind are treated in the Act as if they were claims for the tort of negligence. [15]
14. CLA, ss 5, 5A; see also Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) 14 ANZ Ins Cas ¶61-678; (2006) Aust Torts Reports ¶81-830 (at [167]) per Ipp JA (Giles and Tobias JJA agreeing).
15. Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 (at [14]) per curiam (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
However, save for a passing reference in Elders’ written submissions and two equally passing references in oral submissions to the CLA, no party drew any of its provisions to his Honour’s attention. His Honour did not refer to any of its provisions.
The primary judge first set out substantially all of the history I have recounted. He made no credit findings. He did not refer to any of the lay witnesses’ oral evidence.
The primary judge then turned to the evidence given by the experts in respect of the causes of the collapse which they generally agreed was as follows:

“[29] The balcony collapsed when the nail plate on the outer perimeter became detached from the bearer that was supported by wooden posts. The nail plate supported the joists upon which the boards had been placed by Mr Windred. The precipitating failure may have been the rupture of the deeply corroded steel bolts securing the nail plate to the bearer. The nail plate then fell from the bearer because it was quite rotten and was, in any event, inadequately nailed to the bearer.
[30] The experts agree that a cause of these failures was deterioration due to poor maintenance. They disagree as to whether the extent of that deterioration would have been apparent to Mr Windred in 2008.” [Emphasis added.]

Three of the experts gave concurrent evidence from which his Honour concluded a common position was reached “to the effect that recognition of the extent of deterioration required some skill and training in construction, and that Mr Windred’s limited experience and expertise may not have equipped him with sufficient knowledge to recognise such problems as may have been apparent.” [16]
16. Liability judgment (at [32]).
No expert was of the opinion that Mr Windred’s work caused or contributed to the collapse. [17]
17. Ibid (at [33]).
The primary judge first dealt with Elders’ liability. In doing so, his Honour set out the provisions of the 1999, rather than the 2005, Management Agreement. [18] It was common ground on appeal that there was no relevant difference between the 1999 Management Agreement and the 2005 Management Agreement.
18. Ibid (at [34]); see above (at [25]).
The primary judge found that it was beyond dispute that Elders, “having accepted the delegation and authority to arrange repairs and maintenance in accordance with the Principal’s obligations to repair” [emphasis in original] owed to the plaintiffs a duty to exercise reasonable care in maintaining the premises. [19] His Honour considered that, in the light of the balcony’s maintenance history, and pursuant to the express terms of the Management Agreement, Elders was liable in negligence to each of the plaintiffs and Ms Gillies. In particular, his Honour placed weight on the information Elders received from Northern Group in November 2004, [20] indicating that repairing the joists instead of replacing the deck was a temporary measure, from North Property Repairs & Maintenance in June 2007, [21] indicating the percentage of timber that was “completely rotted to a dangerous level”, and from Twenty Four Seven also in 2007 that if only the decking was removed the bearers would need to be checked. [22]
19.    Ibid (at [36]).
20.    Once again, in his judgment (at [37]), the primary judge erroneously attributed this information to Pittwater Maintenance Service.
21.    The primary judge referred to May 2007, but the email in which it was contained is dated 22 June 2007.
22.    Liability judgment (at [37] – [39]).
His Honour found:

“[40]   A reasonable person in the position of Elders in January 2008 would at that time have either advised the owner to accept the quote from North Property Repair and Maintenance [sic, as in original] to completely replace the deck, or at least obtained advice from a person properly qualified to inspect and assess the structural integrity of the deck and the extent of repair or replacement necessary to guard against the risk of failure.
[41]   A reasonable person in the position of Ms Hopton in February 2012, having received the email from Joanne Gillies would have referred to the file containing the maintenance records, perceived that the problems with the deck would not be addressed by replacing the decking boards, and retained an expert to advise, rather than commissioning Mr Gee to merely replace those boards.
[42]   These failures by Elders were in breach of its duty to the plaintiffs. If the plaintiffs have suffered injury as a result of that breach Elders is liable to them in damages.” [23]
23.    The primary judge describes all plaintiffs, that is to say, including Ms Gillies, as such.

In the costs judgment, the primary judge also found that “the collapse of the balcony resulted from breach of the contractual duty to exercise reasonable skill and care” Elders owed to the Bhides pursuant to the Management Agreement. [24]
24. (At [4](2)).
The primary judge then considered the Bhides’ liability to the plaintiffs and Ms Gillies.
Counsel for Elders had submitted that the Bhides were liable because their delegation of responsibility for maintenance of the premises to it was incomplete, relying on Laresu Pty Ltd v Clark where Macfarlan JA held that a general delegation to an agent cannot absolve the principal “of responsibility for the state of the premises to the extent that such a state reflected its express instructions.”[25]
25. [2010] NSWCA 180 (Laresu) (at [73]) (Tobias JA and Handley AJA agreeing), the Management Agreement in Laresu was relevantly the same as the indemnity provision in the 2005 Management Agreement.
The primary judge saw no evidence that the Bhides gave any express instructions to Elders inconsistent with them accepting Elders’ recommendations for necessary repairs. His Honour held that they had “no cause to doubt that Elders possessed the skill and experience to properly maintain the premises”. His Honour held that they had “discharged their duty of care to the plaintiffs by engaging a competent contractor to fulfil [their] duty”. [26]
26. Liability judgment (at [43]).
Accordingly, his Honour held that the Bhides, if sued, would not have been held liable to the plaintiffs in tort. [27]
27. Ibid (at [45] – [46]). The conditional “if sued” was not relevant to the Bhides’ liability to the plaintiffs and Ms Gillies all of whom had sued the Bhides. For the same reason, it was not relevant to Elders’ cross-claim against the Bhides.
The primary judge held that the Bhides were, however, liable to Ms Gillies in contract for breach of their contractual obligation under the tenancy agreement to maintain the premises in a reasonable state of repair. However, he held that the Bhides were entitled to a contractual indemnity from Elders in respect of this liability. [28]
28. Ibid (at [47], [63]).
As to the Bhides’ liability to Elders, the primary judge held that the indemnity provision was against liability arising out of the proper performance of the agent’s duties, but that it did not apply where, as in the present case, Elders had failed to perform its duties properly. [29] Elders does not challenge this finding.
29. Ibid (at [49]); citing Laresu.
As to the liability of Mr Windred to the plaintiffs and Ms Gillies, his Honour found that Mr Windred was not a tortfeasor who, if sued, would have been liable. His Honour held that the scope of Mr Windred’s duty was to be measured against the nature of the specific work that he was engaged to perform. He was retained to replace the decking boards, not to advise on the structural integrity of the balcony for which he was not qualified. [30]
30. Ibid (at [50], [55]).
Finally, the primary judge dealt with Ms Gillies’ liability as occupier of the property to the plaintiffs. Although none of the plaintiffs had sued her, the question whether she was a tortfeasor was relevant to the cross-claims for contribution brought against her, relevantly, by Elders and the Bhides.
The primary judge accepted that Ms Gillies owed the plaintiffs a duty of care as occupier. [31]
31. Ibid (at [56]).
Counsel for Elders submitted that Ms Gillies had failed to discharge her duty of care to the plaintiffs in three respects:

As a qualified architect she had a special expertise and failed to exercise that expertise to detect the problems with the balcony;

In the alternative, she should have commissioned an independent inspection; and

Further in the alternative, she should have closed and locked the balcony.

His Honour rejected Elders’ submissions for the following reasons:

“[59]   Upon the evidence Ms Gillies, although a qualified architect, was not experienced or particularly knowledgeable in matters of ‘structural engineering’, deferring to engineers in respect of those matters.
[60]   Ms Gillies reasonably discharged her duty, by complaining about the level of maintenance on the property and seeking that the agents intervene. The duty of Ms Gillies to act is conditioned by her extent of the knowledge of the problems and I am unpersuaded that she may reasonably have appreciated the full extent of these problems. Had she known of the extent of the deterioration she would not have permitted her daughters and their friends to occupy the balcony as she did.
[61]   A telling point made by Mr O’Dowd for Ms Gillies, is that shortly before the collapse the deck had been inspected by Mr Gee at the request of the agent. Ms Gillies was told apparently that Mr Gee was there for the purpose of quoting on and effecting repairs. She had no cause to believe that he was not qualified to form an opinion as to the safety of the deck. Mr Gee assessed the problems in the deck and did not suggest that the deck could not be safely used. In that circumstance, any suspicion by Ms Gillies that the deck was in immediate danger and unsafe for use was allayed.” [Emphasis added.]

Elders does not challenge his Honour’s finding at [59], although it does rely on the proposition that Ms Gillies was an experienced, registered and practising architect.
Accordingly, the primary judge concluded that, if the plaintiffs and Ms Gillies had suffered injuries, Elders was solely liable to them in tort, the Bhides were only liable to Ms Gillies in her case for breach of contract, for which they were entitled to a contractual indemnity from Elders, and the Bhides and Ms Gillies were not liable on Elders’ cross-claims. [32]
32. Ibid (at [63]).

Costs judgment

In the costs judgment, the primary judge made what he described as “findings”. Most, if not all, repeated findings made in the liability judgment.
Insofar as Ms Gillies’ case was concerned, those findings included that the balcony’s collapse resulted from breach of the contractual duty to repair the Bhides owed to Ms Gillies pursuant to the tenancy agreement, and, too, from breach of the contractual duty to exercise reasonable skill and care Elders owed to the Bhides pursuant to the Management Agreement, and breach of the common law duty Elders owed to Ms Gillies. In addition to the liability judgment findings, his Honour held that Ms Gillies had not failed to take reasonable steps to ensure her own safety. However, his Honour considered that, because the Bhides and Elders asserted that Ms Gillies suffered no damage as a result of their breach of duty, it was premature to enter a verdict or judgment in her favour. [33]
33. Costs judgment (at [5]).
As to the First Bhides’ cross-claim, pursuant to which the Bhides sought contribution from Elders and Mr Windred, it was similarly premature to enter a verdict or judgment for the Bhides against Elders where Elders might not be liable to Ms Gillies in damages. [34] However, his Honour was prepared to enter judgment for Mr Windred and order that the Bhides pay his costs.
34. Ibid (at [6]).
As to the First Elders’ cross-claim, pursuant to which Elders claimed contribution from the Bhides and Mr Windred, his Honour entered judgment for the Bhides and Mr Windred against Elders, ordering that the latter pay the costs of the other parties. [35] Elders was ordered to pay the costs incurred by the Bhides in defending the cross-claim on an indemnity basis from 21 September 2015, [36] being the date of an offer of compromise made by the Bhides and unreasonably rejected by Elders. [37]
35.    Ibid (at [9]).
36.    The date referred to in the costs judgment (at [9](b)) was 22 September 2015. However, as the date of the offer was 21 September 2015 and this date is later referred to as the date from which indemnity costs were to be paid, I will refer to that date.
37.    The offer was for the Bhides to contribute 25% to any ultimate judgment plus 25% of Ms Gillies’ costs as agreed or assessed: ibid (at [4](9)).
In respect of the remaining plaintiffs’ proceedings, the primary judge repeated that the balcony’s collapse resulted from the breach of a duty Elders owed to the plaintiffs to exercise reasonable skill and care in maintaining the balcony and not from any breach of duty owed by Mr Windred, Ms Gillies or the Bhides. [38] His Honour gave verdict for each of the plaintiffs against Elders and judgment for the Bhides against each of the plaintiffs, with Elders to pay the Bhides’ costs incurred in defending the plaintiffs’ claims. [39] That costs order was based on his Honour’s finding that Elders’ subsequent conduct in continuing to deny liability and asserting that the Bhides were responsible was sufficient reason to enliven the discretion to make a Sanderson order in favour of the plaintiffs against Elders. [40]
38. Costs judgment (at [13], [18], [22], [27]).
39. See costs judgment (at [14], [18], [23], [28]).
40. Sanderson v Blyth Theatre Co [1903] 2 KB 533.
In respect of the Second Bhides’ cross-claim in each of the plaintiffs’ proceedings, the primary judge ordered judgment for Mr Windred and Ms Gillies against the Bhides with costs. [41]
41. See costs judgment (at [15], [19], [24], [29]).
In respect of the Second Elders’ cross-claim in each of the plaintiffs’ proceedings, the primary judge ordered judgment for the Bhides, Mr Windred and Ms Gillies against Elders, with Elders paying the costs of the other parties. [42]
42. See ibid (at [16], [20], [25], [30]).

Issues on appeal

As I have said, Elders does not challenge the finding that it was negligent, but contends that the Bhides and Ms Gillies should also have been held liable to the other plaintiffs in negligence, and therefore liable to contribute to Elders on its cross-claims pursuant to s 5 of the 1946 Act. In its notice of appeal, Elders relied on the following grounds of appeal:

The primary judge erred in finding the Bhides and Ms Gillies not liable to the plaintiffs, and hence not liable to Elders on its cross-claims.

The primary judge erred in finding:

that the Bhides discharged their duty of care to the plaintiffs by engaging a competent contractor (being Elders) to fulfil the duty of care they owed to the plaintiffs; and

that Ms Gillies discharged her duty as occupier by complaining to Elders about the condition of the balcony.

The primary judge failed to consider and apply the principles of s 5B of the CLA to Elders’ respective cases against the Bhides and Ms Gillies.

The primary judge failed to provide adequate reasons for his finding as to the liability of the Bhides and Ms Gillies.

In the event the appeal is allowed, Elders seeks orders:

setting aside each of the judgments in favour of the Bhides as against the plaintiffs and the judgments in the Bhides’ favour against Elders on its First and Second cross-claim in each of the plaintiffs’ and Ms Gillies’ proceedings;

judgment in its favour against the respondents in its Second cross-claim in each matter;

that the respondents contribute to its liability to the plaintiffs in each proceeding to the extent the Court considers just and equitable.

During the oral hearing, the Court drew to Elders’ attention the necessity to address the primary judge’s finding that the Bhides were entitled to contractual indemnity from it with respect to their liability for breach of the tenancy agreement with Ms Gillies. The Bhides’ entitlement to a contractual indemnity against Elders was essentially an entitlement to damages for breach of the Management Agreement in order to indemnify the Bhides for any loss arising from their liability to Ms Gillies for breach of the tenancy agreement – the only person to whom they had been found liable.
Leave was granted to Elders to amend its notice of appeal in order to insert a fresh ground of appeal addressing this finding. Ground 4A, as so inserted, complains:

(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

(2) Subsection (1) does not operate to defeat any defence arising under a contract.
(3) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.” [Emphasis in original.]

In Astley the majority in the High Court held that s 27A of the Wrongs Act 1936 (SA) which was in substantially the same terms as the then s 10 of the 1965 Act did not apply to an award of damages for breach of contract awarded in favour of a plaintiff even though that plaintiff had, or could have, also sued in tort. [105]
105. (at [70], [89]) per Gleeson CJ, McHugh, Gummow and Hayne JJ; Callinan J dissenting.
Following that decision, and no doubt taking up the suggestion for legislative reform in Astley,[106] the Standing Committee of Attorneys-General (SCAG) moved to amend the apportionment legislation in the various jurisdictions. SCAG developed model provisions intended to overcome the effect of Astley by enabling damages awards in actions for breach of contract to be reduced for contributory negligence. [107]
106. (at [88]).
107. Second Reading Speech, Law Reform (Miscellaneous Provisions) Amendment Bill, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 November 2000 (at 10294).
In 2000 the 1965 Act was amended by inserting the current Pt 3 which was based on the model provisions. [108] As Kunc J said in ASF Resources Ltd v Clarke, [109] the new Pt 3 “made a plaintiff's contributory negligence relevant to the assessment of damages for ‘a breach of a contractual duty of care that is concurrent or co-extensive with a duty of care in tort.’”
108. Ibid.
109. [2014] NSWSC 252 (at [37]) citing Reinhold v New South Wales Lotteries Corporation (No 2) (2008) NSWLR 726; [2008] NSWSC 187 (at [28]) per Barrett J.
Despite their relative antiquity there do not appear to have been any decisions in which the operation of the 2000 amendments has been considered. The parties did not refer the Court to any. Nor did their submissions engage in any analysis of its provisions or operation.
Elders submits that the Court can apportion responsibility as between it and the Bhides for the plaintiffs and Ms Gillies’ loss and damage pursuant to s 9 of the 1965 Act because, pursuant to s 8 of the 1965 Act, “wrong” includes its breach of its contractual duty of care and that was concurrent and co-extensive with the duty of care in tort it owed the Bhides. Elders submits that that is the nature of the tortious breach alleged in the Bhides’ First and Second cross-claims against it.
The Bhides did not contest that proposition and, in my view, Elders’ submission should be accepted. The law recognises that concurrent liabilities in both contract and tort may arise in cases of professional negligence. [110]
110. Astley (at [44], [46] – [48]).
Elders’ submissions assumed that the Bhides fell within the description of “claimant” in s 9. Again, the Bhides did not contest that proposition. [111]
111. It should be noted that the Bhides were “plaintiffs” for the purposes of their cross-claims. Civil Procedure Act 2005 (NSW), s 3 – definition of plaintiff; Uniform Civil Procedure Rules 2005 (NSW), Dictionary, Note explaining that particular words and expressions, which included “plaintiff” as defined in the Civil Procedure Act, “either for the purposes of that Act generally or for the purposes of particular portions of that Act, and consequently have the same meanings in these rules”.
In my opinion, having found the Bhides to be liable in tort to the plaintiffs and Ms Gillies, they have suffered damage in the sense to which s 9 refers, such as to be a “claimant” as there referred to, albeit that the quantum of their exposure has yet to be determined. That exposure has been the result partly of their failure to take reasonable care and, too, partly by reason of Elders’ breach of the implied term of the Management Agreement, which, as I have said, is concurrent and co-extensive with the duty of care Elders owed the Bhides.
Neither Elders nor the Bhides made any submissions about the meaning of “damage” in s 8. The definition of “damage” in s 9 of the 1965 Act prior to the 2000 amendments was the same as that now found in s 8.
The word “damage” also appears in both s 5 of the 1946 Act dealing with contribution between tortfeasors and in s 35 of the CLA dealing with proportionate liability for apportionable claims.
In Mahony v J Kruschich (Demolitions) Pty Ltd,[112] the High Court held in a unanimous judgment, that “damage” in s 5 of the 1946 Act referred to what in a negligence claim the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission. Thus, for example, where a tortfeasor’s negligent act or omission causes personal injury, “damage” includes both the injury itself and other foreseeable consequences suffered by the plaintiff.
112. (1985) 156 CLR 522 (Mahony) (at 527) per curiam (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ); [1985] HCA 37 see also Bracks v Smyth-Kirk [2009] NSWCA 401; (2009) 263 ALR 522 (at [113]) per McColl JA (Allsop P and Young JA agreeing).
In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd,[113] the majority applied Mahony in construing the word “damage” where it appeared in s 35 of the CLA also to mean “the injury and other foreseeable consequences suffered by a plaintiff”.
113. (2013) 247 CLR 613; [2013] HCA 10 (Hunt & Hunt Lawyers) (at [24]) per French CJ, Hayne and Kiefel JJ.
Although the word “damage” in s 9 appears in a different context to that in s 5 of the 1946 Act and s 35 of the CLA, in my view the legislature’s use in the 1965 Act of the word “damage” as opposed to “damages” as the criterion for the apportionment by reason of contributory negligence indicates an intention that it bear a similar construction.
On that basis, “damage” in s 9 refers to the foreseeable consequences to which the Bhides were exposed by reason of Elders’ breach of the implied term to use reasonable care, including, once assessed in the damages hearings, the damages the plaintiffs are entitled to recover from them.
Because the proceedings are governed by the CLA, the question of what constitutes contributory negligence for the purposes of s 9 of the 1965 Act has to be determined in accordance with s 5R of the CLA. That provision requires the court to apply the “principles that are applicable in determining whether a person has been negligent … in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.”
The correct legal question in determining the issue of contributory negligence in accordance with s 5R is “whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had or ought to have had, was negligent”. [114] That is because, as at common law, “[c]ontributory negligence, like negligence, ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.’”[115]
114. Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 (at [217]) per Hoeben JA (Macfarlan and Ward JJA agreeing) applying Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 (at [107] – [108]) per Basten JA.
115. Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 (at [32]) per McHugh J.
In Astley, the joint judgment said:

“[30] A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.” [Emphasis added; footnotes omitted.]

For the reasons I have given in finding the Bhides breached their duty of care, in my view, they failed to take reasonable care thus leading to the damage I have identified. They failed to take that degree of care an ordinary reasonable person with knowledge of the history of issues raised about the structural integrity of the balcony would take. [116]
116. Cf Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; [2009] Aust Torts Reports ¶82 043 (at [146]) per McColl JA (Ipp JA agreeing); Council of the City of Greater Taree v Wells (at [83]) per Beazley JA (McColl and Basten JJA agreeing); Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 (at [80]) per Sackville AJA (McColl JA agreeing).
Where a plaintiff is found to have been guilty of contributory negligence, the relative culpability of the plaintiff and defendant are determined in accordance with s 9 of the 1965 Act. [117]
117. Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 (at [48]) per McColl JA.
The question of apportionment the “just and equitable” test in s 9(1)(b) invokes requires attention to be given to the “degree of departure from the standard of care of the reasonable man”. [118] Thus, the just and equitable apportionment test requires:

“... a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] TASStRp 11; [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”[119]
118. Pennington v Norris (1956) 96 CLR 10 (at 16) per curiam (Dixon CJ, Webb, Fullagar and Kitto JJ); [1956] HCA 26.
119. Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 (Podrebersek) (at 494); Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 (at 68) per Hayne J (Gaudron, McHugh, Gummow and Kirby JJ agreeing).

In considering the Bhides’ culpability accordingly, it is relevant to take into account the duty of care Elders owed them. However, in my opinion, they ought also to have determined that the regular complaints about the structural integrity of the balcony indicated Elders was not competent in identifying experts qualified to address that issue.
At the same time, it was Elders, not the Bhides, who, on the evidence, had access to a range of experts, including engineers, who, it appears to have been common ground at trial, ought to have been engaged to investigate the issue. Elders, too, should have been conscious of the history of complaints about the structural integrity of the balcony and reminded the Bhides of the significant occasions on which tradespeople called to investigate the balcony drew attention to concerns about the supporting structure. [120] Elders, too, ought to have recommended to the Bhides that they engage persons suitably qualified to investigate the balcony’s structural integrity, rather than continually only recommending carpenters be engaged.
120. Pittwater Maintenance Service, 14 June 2001, “top edges of Oregon supporting beams are rotting out”; Northern Group, 10 November 2004, “repairing the joists a temporary measure”; 8 December 2004 similar advice from Pittwater Maintenance Service; North Property Repairs & Maintenance, 22 June 2007, “supporting timbers [could] … fail over time.”; Mr Gillies, 22 November 2010, “external timber deck … now … a safety and liability concern … major supporting cross beam … has substantial wood rot”; also Ms Gillies’ 6 December 2010 email; Ms Gillies’ 24 February 2012 email, “timber strutting underneath [deck] is also precarious and the deck is not fully supported.”
Taking all these matters into account, including the Bhides’ reliance on Elders, in my view, it is just and equitable to find that the Bhides’ damages recoverable in respect of Elders’ breach of the Management Agreement should be reduced by thirty per cent.

Contribution: the Bhides

Section 5 of the 1946 Act relevantly provides:

“(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage,
…
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.” [Emphasis added.]

The Bhides submitted, albeit faintly, and only in submissions filed in response to Elders’ submissions on its amended notice of appeal, that Elders’ claim for contribution pursuant to s 5 of the 1946 Act could not succeed because the Bhides were not “any other tortfeasor who is, or would if sued have been, liable in respect of the same damage …”. [121]
121. 1946 Act, s 5(1)(c).
This submission was based on the proposition that the Bhides had been sued and found not liable by judgments entered in their favour in each of the plaintiff’s proceedings. Accordingly, they contended that no aspect of what has come to be known as the second limb of s 5(1)(c) of the 1946 Act[122] can be established. No authorities were cited for that submission nor, in response, did Elders address its legal merits.
122. James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 (at [35]) per Gaudron and Gummow JJ; (at [80]) per Kirby J.
It is true that as long as the judgments finding the Bhides not liable to the plaintiffs are on the record, Elders is unable to assert that the Bhides are tortfeasors who are, or would if sued have been, liable. [123] Nevertheless, the Bhides’ submission that Elders cannot bring them within the second limb as a matter of law should be rejected.
123. Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 (at 670) per Brennan J; [1986] HCA 34.
Elders is “directly interested in the question whether [the Bhides were] … tortfeasor[s] who [were] liable to the plaintiff” in each of their proceedings in which judgment was entered in the Bhides favour. [124] The consequence of that direct interest is that it is open to Elders on this appeal to challenge the judgments entered in the Bhides’ favour. [125] This conclusion also follows from the fact that it is the duty of this Court to rehear the case and give the judgment which ought to have been given below. [126]
124. Walter H Wright Pty Ltd v Commonwealth [1958] VR 318 (Wright) (at 321) per curiam (Herring CJ, Lowe and O’Bryan JJ); Sparks v Van Den Ham [2003] WASCA 143 (at [28] – [37]) per Parker J (Wallwork and Murray JJ agreeing).
125. Ibid.
126. Supreme Court Act 1970 (NSW), ss 75A(5) and (10); Hanson v Wearmouth Coal Company Ltd [1939] 3 All ER 47 (at 55), referred to with approval in Wright (at 321).
To determine whether a party is entitled to contribution when a claim for contribution is made, it is necessary that the following be satisfied:

“(1) What damage has A suffered? (2) Is B liable to A in respect of that damage? (3) Is C also liable to A in respect of that damage or some of it?”[127]
127. Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14; [2002] 1 WLR 1397; [2002] 2 All ER 801 (at [6]) per Lord Bingham of Cornhill referred to with approval in Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 (Alexander) (at [26]) per Gleeson CJ, Gummow and Hayne JJ; see also Hunt & Hunt Lawyers (at [87]) per Bell and Gageler JJ.

As I have said, in s 5(1) “damage” refers to “what the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission”. [128] The “same damage” in respect of which Elders seeks contribution, is “that damage” as referred to in s 5(1). [129]
128. Mahony (at 527).
129. Alexander (at [27], [37]).
On the findings of breach I have made, Elders, the Bhides and Ms Gillies are joint tortfeasors liable for the same wrongful act or tort leading to a single damage. [130] That is because they breached a joint duty to use reasonable care for the safety of persons coming onto the property. But, even if that is not correct, and they are concurrent tortfeasors, whose separate acts combine to produce damage, “that damage” is the “same damage” referred to in s 5(1).
130. As to Ms Gillies, she is caught by s 5, even though not sued by the plaintiffs: see Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 (at 219) per Barwick CJ; [1966] HCA 3.
Accordingly, using Lord Bingham’s criteria, in the plaintiffs’ proceedings, each plaintiff is A, Elders is B, the Bhides are C and Ms Gillies is D. In Ms Gillies’ proceedings, she is A, Elders is B and the Bhides are C.
Thus, Elders is prima facie entitled to seek contribution from the Bhides and Ms Gillies pursuant to s 5(1)(c) of the 1946 Act. However, in my opinion, the passage in s 5(1)(c) I have emphasised does not permit a tortfeasor to recover contribution from a person entitled to be indemnified by it in respect of the liability in respect of which contribution is sought.
That is the position here insofar as the Bhides are concerned. Elders seeks contribution in respect of its liability to the plaintiffs and Ms Gillies. The Bhides are entitled to a contractual indemnity from Elders in respect of the same damage, being their liability as joint tortfeasors to the plaintiffs and Ms Gillies. Accordingly, in my view, s 5(1)(c) of the 1946 Act disentitles Elders from recovering contribution from them.
If that conclusion was not correct, I would be of the view that Elders could not be entitled both to have the damages it is liable to pay the Bhides reduced by reason of their contributory negligence, and also recover contribution from them pursuant to s 5 of the 1946 Act. That would be akin to double recovery.

Contribution: Ms Gillies

The just and equitable test for determining contribution in s 5 of the 1946 Act is “substantially similar” to that applied for apportionment in respect of contributory negligence, save in at least two respect. First, in the latter case, the Court is reducing the recovery of an injured party. [131] Secondly, and again in the latter respect, possibly in circumstances where the injured party is not a tortfeasor. [132]
131. John G Fleming, The Law of Torts, (9th ed, LBC Information Services, 1998) (Fleming) (at 297).
132. Astley (at [21]).

Nevertheless, generally, the test applied in both circumstances is substantially the same. [133] Thus, in Pantalone v Alaouie,[134] Giles J (as his Honour then was) applied the test for contributory negligence stated in Podrebersek [135] to assess what contribution was just and equitable as between tortfeasors.
133. Fleming, op cit.
134. (1989) 18 NSWLR 119 (at 141).
135. (At 494).
Applying that approach in Ms Gillies’ case, I would take into account the fact that, although she was the occupier of the property, she was a tenant with limited ability to repair the balcony. Nevertheless, she had been occupier of the property for approximately 7 years at the time the balcony collapsed and, over that period, had had the opportunity to observe the general poor maintenance of the balcony insofar as its supporting structures were concerned. It was she who, in February 2012, drew attention to its precarious nature and, despite that, did not take the elementary precaution of preventing access to the deck of the balcony. Having regard to those matters and the conduct of both Elders and the Bhides as found by the primary judge and discussed in these reasons, I would assess Ms Gillies’ contribution at twenty per cent.
In my view, a finding that Ms Gillies was liable to contribute to Elders’ damages in this respect is not inconsistent with the finding by the primary judge that she was not guilty of contributory negligence in her own proceedings. The latter was a finding that she had not failed to take reasonable care for her own safety, whereas the finding of contribution is based upon her breach of the duty of care she owed as occupiers to those present on the premises.

Conclusion

The prima facie consequence of my conclusions is that, in any of the damages hearings, it will be necessary for the trial judge:

First, to determine the plaintiff’s damages against the Bhides and Elders as joint tortfeasors and enter judgment against each of them for the entire amount;

Secondly, as between the Bhides and Elders on the Bhides’ cross-claims, reduce the amount the Bhides are entitled to recover from Elders by reason of its breach of the Management Agreement by thirty per cent on account of their contributory negligence;

Thirdly, as between Elders and Ms Gillies in the plaintiffs’, but not her, proceedings, order that Ms Gillies contribute to Elders’ liability to the plaintiffs to the extent of twenty per cent.

This is because, the consequence of the findings I have made is that the primary judge should have found the Bhides liable on the plaintiffs’ and Ms Gillies’ claims. Instead his Honour entered judgment in favour of the Bhides against each of the plaintiffs. Further, in Ms Gillies’ proceedings, his Honour only found in her favour because of the Bhides’ breach of the tenancy agreement. However, he declined to enter a verdict or judgment in her favour because it was premature as Elders and the Bhides asserted she had suffered no damage. Nevertheless, his Honour’s contingent orders should have proceeded also on the basis that the Bhides were liable to Ms Gillies as a tortfeasor.
However, the possibility of these outcomes is not apparent in Elders’ draft orders in the amended notice of appeal. Rather, as to the plaintiffs’ proceedings, the draft orders seek to set aside the judgments in favour of the Bhides, but not to replace them with judgments in the respective plaintiff’s favour against the Bhides. The logic of that approach is not apparent. If judgment is not entered in the individual plaintiff’s favour against the Bhides, then there will have been no order on that aspect of their case. That is unsatisfactory. However, if the judgment in the Bhides’ favour in each plaintiff’s proceedings stands, it is inconsistent with the finding that the Bhides are tortfeasors.
Insofar as Ms Gillies’ proceedings are concerned, the draft orders do not contemplate any alteration to the contingent orders made in the Bhides’ favour. In my view, that position has to be corrected to be consistent with the findings I have made.
These are not the only complexities.
The consequence of Elders amending its notice of appeal to add ground 4A dealing with the contractual indemnity point was that it was challenging a ruling in the Bhides’ favour on the Bhides’ cross-claims in Ms Gillies’ proceedings. As I would uphold the Bhides’ notice of contention that they should have the benefit of a wider contractual indemnity in each of the plaintiffs’ proceedings, Elders has been unsuccessful in resisting the First and Second Bhides’ cross-claims, save to the extent that their entitlement to recoup whatever amounts for which they may be found to be liable to any of the plaintiffs is to be reduced by thirty per cent.
At the time it amended the notice of appeal, it is apparent that Elders did not consider the orders which would have to be made if the Bhides were held to be joint tortfeasors and if the contractual indemnity in Ms Gillies’ proceedings was upheld and, so too was the Bhides’ notice of contention, albeit with a finding of contributory negligence. Both findings presuppose, as did the Bhides’ cross-claims in the plaintiffs’ proceedings, that they were held liable to the plaintiffs.
However, the primary judge did not enter judgment in the Bhides’ favour on the First Bhides’ cross-claim in Ms Gillies’ proceedings, holding that that would be premature because Elders may not be liable to pay Ms Gillies damages.
In all the circumstances, apart from indicating that the appeal is allowed, I would direct the parties to bring in short minutes of order reflecting the reasons, including, if necessary entering judgment in each plaintiff’s favour against the Bhides.
Insofar as costs are concerned, because the effect of these reasons is to alter the outcome of the trial substantially, the parties should have the opportunity of addressing both as to the costs orders which should be made in relation to the costs of the trial and the costs in this Court.

Orders

I propose the following orders:

Grant leave to appeal.

Appeal allowed.

Parties to bring in short minutes of order reflecting these reasons within 14 days.

In the event the parties are unable to agree on short minutes of order as to the liability issues, they are to file and serve written submissions setting out the orders they propose and their reasons for disagreeing with the orders any other party proposes. Such submissions are to be filed and served in accordance with the timetable in 6(a) – (c).

Insofar as costs are concerned, if the parties can agree as to the orders for costs to be made, they are to set out that agreement in the short minutes of order referred to in (3).

If the parties cannot agree as to the orders for costs to be made, they are to file and serve written submissions addressing the costs of the appeal and of the trial, such submissions are not to exceed six pages, in accordance with the following timetable. Costs questions will be determined on the papers unless compelling submissions to the contrary are made in the written submissions.

Elders’ submissions are to be lodged with the Registrar and served within 14 days of these orders;

The Bhides’ and Ms Gillies’ submissions are to be lodged with the Registrar and served within one month of these orders;

Any submissions in reply by Elders are to be lodged with the Registrar and served one week after receiving the respondents’ submissions.

MEAGHER JA: I agree with the reasons and proposed orders of McColl JA.
WARD JA: I agree with McColl JA.

**********

Endnotes

Decision last updated: 04 August 2017

Medium Neutral Citation:	Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Hearing dates:	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
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wrongs Act 1936 (SA)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Ahluwalia and Ors v Robinson [2003] NSWCA 175 Aldred v Stelcad Pty Ltd [2015] NSWCA 201 Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 ASF Resources Ltd v Clarke [2014] NSWSC 252 Astley v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6 Austin v Bonney [1999] 1 Qd R 114 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Barisic v Devenport [1978] 2 NSWLR 111 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) 14 ANZ Ins Cas ¶61-678; (2006) Aust Torts Reports ¶81-830 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 Bracks v Smyth-Kirk [2009] NSWCA 401; (2009) 263 ALR 522 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; [1966] HCA 3 Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226; [1986] HCA 14 Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Fabre v Lui [2015] NSWCA 157 Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588; [1965] HCA 26 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 Hanson v Wearmouth Coal Company Ltd [1939] 3 All ER 47 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Laresu Pty Ltd v Clark [2010] NSWCA 180 Le Cornu Furniture & Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37 Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 Oxley County Council v Macdonald [1999] NSWCA 126 Pantalone v Alaouie (1989) 18 NSWLR 119 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; [1985] HCA 3 Pennington v Norris (1956) 96 CLR 10; [1956] HCA 26 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Reinhold v New South Wales Lotteries Corporation (No 2) (2008) NSWLR 726; [2008] NSWSC 187 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14; [2002] 1 WLR 1397; [2002] 2 All ER 801 Sakoua v Williams (2005) 64 NSWLR 588; [2005] NSWCA 405 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Smith v South Western Sydney Local Health Network [2017] NSWCA 123 Sparks v Van Den Ham [2003] WASCA 143 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; [2009] Aust Torts Reports ¶82 043 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Walter H Wright Pty Ltd v Commonwealth [1958] VR 318 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65
Texts Cited:	John G Fleming, The Law of Torts, (9th ed, LBC Information Services, 1998) Second Reading Speech, Law Reform (Miscellaneous Provisions) Amendment Bill, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 November 2000
Category:	Principal judgment
Parties:	Libra Collaroy Pty Ltd (Appellant) Deepak Anant Bhide (First Respondent) Alka Bhide (Second Respondent) Joanne Gillies (Third Respondent)
Representation:	Counsel: D Priestley SC (Appellant) RJ Brender (First and Second Respondents) D O’Dowd (Third Respondent) Solicitors: Gilchrist Connell Lawyers (Appellant) Anderson & Sjoquist Lawyers (First and Second Respondents) Curwoods Lawyers (Third Respondent)
File Number(s):	2016/65770; 2016/229209
Publication restriction:	The street address of the property has not been reproduced in accordance with the Court’s policy on identity theft prevention.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Before: Curtis DCJ File Number(s): 2014/4641; 2014/4657; 2014/4687; 2014/4699; 2014/69433