Oberin v Brandrick
[2022] VCC 1829
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-02301
| Oberin | Plaintiff |
| v | |
| Brandrick & Anor | Defendants |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2022 | |
DATE OF RULING: | 28 October 2022 | |
CASE MAY BE CITED AS: | Oberin v Brandrick & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1829 | |
RULING
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Subject:PROPORTIONATE LIABILITY
Catchwords: Notice of Contribution – Wrongs Act 1958 (Vic)
Legislation Cited: Civil Procedure Act 2010 (Vic) s63; County Court Civil Procedure Rules 2018 (Vic) rr22.23 and 23.01; Wrongs Act 1958 (Vic) Parts IV and IVAA; Interpretation of Legislation Act 1984 (Vic) s37(c).
Cases Cited:Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Kayteal Pty Ltd v John Joseph Dignan & Ors [2011] NSWSC 197; Tanah Merah Vic Pty Ltd (ACN 098 935 490) v Owners Corporation No 1 of PS613436T [2021] VSCA 72; Godfrey Spowers (Victoria) Pty Ltd v Lincolne Scott Australia Pty Ltd & Ors (2008) 21 VR 84; Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR 762; Extension Builders Australia Pty Ltd v Bowman [2020] VCAT 1311; Gandel v Krongold Constructions Pty Ltd [2014] VCC 650.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dawes & Vary Riordan Pty Ltd | |
| For the First Defendant | Mr J Twigg KC | Sparke Helmore Lawyers |
For the Second Defendant | Mr R Andrew | Oldham Fairweather Legal |
HER HONOUR:
Introduction
1By summons filed on 14 October 2022, the first defendant sought orders of the Court that the second defendant’s Notice of Contribution filed on 14 July 2022 be dismissed by reason of s63 of the Civil Procedure Act 2010 (Vic), rr22.23 and/or 23.01 of the County Court Civil Procedure Rules 2018 (“the Rules”), and the inherent jurisdiction of the Court.
2The application was supported by the affidavit of Mark Andrew Beech declared on 14 October 2022 together with the first defendant’s written outline of argument.
3The application is opposed. The second defendant filed its written submissions on 19 October 2022.
Background Facts
4This proceeding concerns the American Hotel in Hare Street, Echuca.
5In or about early 2010, the plaintiff engaged an architect, the first defendant (“Brandrick”), to provide various architectural services in relation to the hotel. These architectural services included preparation of plans and drawings for a two-storey extension, as well as supervision of the building works while acting as superintendent.
6On or about 18 May 2012, the plaintiff entered into a building contract with the second defendant, Tugnotion Pty Ltd (“KGB”) for the works. The Brandrick plans and drawings were included as part of the building contract, and Brandrick was nominated as the superintendent under the building contract.
7During the work by KGB and up to approximately mid-2013, Brandrick acted as superintendent and certified progress payments to KGB. The plaintiff alleges that by so certifying, Brandrick represented to the plaintiff that the work had been satisfactorily performed.
8When the works were completed and handed over in about March 2013, the tenant of the American Hotel (a company related to the plaintiff) almost immediately complained of water leaks.
9On or about 18 December 2020, the plaintiff entered into a Rectification Deed with the tenant and rectification works were carried out during the COVID lockdown period.
10KGB was engaged by the plaintiff to do the rectification work and was paid approximately $642,493.52. The plaintiff seeks recovery of that sum as well as other loss and damage, as claimed in the Further Amended Statement of Claim. The total of the claim is approximately $700,000.00.
11The plaintiff’s claim includes allegations against Brandrick for poor and defective design work and poor and defective performance of its duties as superintendent of the works by KGB.
12On 5 November 2021, Mr Beech negotiated with the plaintiff’s solicitors to settle the plaintiff’s claim against the first defendant for the sum of $475,000.00 inclusive of costs and disbursements, comprising $300,000.00 for the claim, and $175,000.00 for costs and disbursements.
13On 8 November 2021, Mr Beech sent an email to Daniel Oldham, the solicitor for the second defendant, asking whether it would be “prepared to sign the deed so as to release my client from these proceedings”, as it was an apportionable claim.
14On 15 November 2021, Mr Oldham replied by email and said that “We [are] instructed that your client is to remain in the proceeding for the purposes of apportionment as pleaded in our Defence”.
15On 21 January 2022, Mr Beech received a fully executed Deed of Release from Shannon Johns, director of the first defendant.
16On 3 February 2022, the solicitors for the first defendant, Sparke Helmore Lawyers, received the settlement funds of $475,000.00 (“Settlement Funds”) into their trust account.
17On 11 February 2022, the accounts department of Sparke Helmore Lawyers transferred the Settlement Funds to the trust account of Dawes & Vary Riordan Pty Ltd, solicitors for the plaintiff.
18On 15 February 2022, Mr Beech received confirmation that the Settlement Funds had been received by the plaintiff on 14 February 2022. Thereafter, the first defendant has not taken an active role in these proceedings. However, Brandrick remains a defendant in the proceeding, for the purpose of apportionment.
Issues
19The first defendant submits that, under Clause 3 of the Deed of Release, before final orders are made with respect to the claim made by the plaintiff (“Oberin”) against KGB, judgment is to be entered with respect to Oberin’s claim against Brandrick as a concurrent wrongdoer for the sum of $475,000.00 under Part IVAA of the Wrongs Act 1958 (Vic) (“Wrongs Act”).
20The first defendant relies on Clause 3 of the Deed of Release, which provides that:
(a) Oberin’s claim against Brandrick is an apportionable claim; and
(b) Brandrick and KGB are concurrent wrongdoers, with respect to the apportionable claim; as a consequence:
(c) following entry of judgment, and before final orders, Brandrick cannot be required to contribute to any damages ordered to be paid by KGB to Oberin, in accordance with s24AJ of the Wrongs Act.
21The first defendant contends that KGB’s claim for contribution has no real prospect of success given s24AJ of the Wrongs Act provides Brandrick with a complete defence to the Notice of Contribution, and, in accordance with the overarching obligation, the Court should dismiss the Notice of Contribution and/or give Brandrick summary judgment on the Notice of Contribution.
22The first respondent relied on the principles set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[1] which distils the test to be applied when determining whether to grant summary judgment pursuant to s63 of the Civil Procedure Act 2010 (Vic) (“CPA”).
[1] (2013) 42 VR 27.
23At [35], Warren CJ and Nettle JA stated as follows:[2]
“Upon the present state of authority:
a. the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b. the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c. it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d. at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence”.
[2] Ibid.
24The first defendant further relies on s24AJ of the Wrongs Act, which provides that:
“Contribution not recoverable from defendant
Despite anything to the contrary in Part IV, a defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim -
(a) cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim; and
(b) cannot be required to indemnify any such wrongdoer”.
25The first defendant argues that, under the terms of the Deed of Release, Brandrick is a defendant (in this proceeding) against whom judgment is to be given under Part IVAA of the Wrongs Act, as a concurrent wrongdoer in relation to the apportionable claim. It claims that despite Part IV, s24AJ of the Wrongs Act applies and Brandrick, as a concurrent wrongdoer in relation to the Brandrick Claim, cannot be required to contribute to the damages recovered or recoverable from KGB (the other concurrent wrongdoer in the same proceeding for the apportionable claim).
26The first defendant cites Kayteal Pty Ltd v John Joseph Dignan & Ors[3] (“Kayteal”), where Brereton J said at [79]:
“The legislation provides that a defendant against whom judgment is given as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer, or to indemnify any such wrongdoer [ Civil Liability Act , s 36] and that any person who was a party to previously concluded proceedings in respect of an apportionable claim is not to be joined as a defendant in further proceedings (against other concurrent wrongdoers) in respect of that claim [ Civil Liability Act , s 38]”.
[3] [2011] NSWSC 197 (“Kayteal”).
27The first defendant submits that Brereton J’s reasoning should be followed by this Court. That is, that Brandrick cannot be required to contribute to any damage payable by KGB to Oberin.
28Brandrick submits that Brereton J’s construction of s24AJ the Wrongs Act conforms with the policy in Part IVAA, whereby a concurrent wrongdoer is adjudged proportionately liable with respect to an apportionable claim, further risk with respect to recovery of damages sits with the claimant. The allocation of the risk in Part IV of the Wrongs Act is directly opposite to that in Part IVAA, hence the injunction at the commencement of s24AJ.
29Relying on Kayteal, the first defendant concludes that it has a complete defence to the claim for contribution and KGB has no real prospect of success.[4]
[4] Ibid.
30Finally, the first defendant says that any perceived injustice regarding the effect of the terms of settlement is resolved by Oberin not mitigating its loss by settling the Brandrick Claim and by the preservation of any right that Brandrick has against KGB, where the Settlement Funds exceeds the proportionate liability of Brandrick to Oberin.
31KGB submits that Part IVAA only applies to apportionable claims. If the plaintiff’s claims against the second defendant (or some of them) are not apportionable, then Part IVAA does not apply to those claims. In that case, Part IV applies and KGB would have a right to claim contribution in the usual course.
32Further, KGB says that Part IVAA only applies after the Court has made a determination that there are apportionable claims. The Deed of Release is a private agreement between the plaintiff and Brandrick and does not operate to determine whether Part IVAA applies, nor does it operate to limit KGB’s right to contribution under Part IV.
Analysis
33The first defendant submitted that the issue between the parties was of narrow contention as to how s24AJ operates together with s23B of the Wrongs Act.
34Section 23B(1) of the Wrongs Act provides:
“Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise)”.
35The proportionate liability scheme in Victoria came into operation on 1 January 2004 as set out in Part IVAA of the Wrongs Act.
36Under s24AF(1), Part IVAA applies to:
“(a) a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care; and
(b) a claim for damages for a contravention of section 18 of the Australian Consumer Law (Victoria) [“an apportionable claim”]”.
37Section 24AI of the Wrongs Act requires the Court to apportion liability for an apportionable claim where a defendant is a “concurrent wrongdoer”, which is defined in s24AH:
“(1)A concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.
(2)For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died”.
38If a proceeding contains an apportionable claim, and a defendant is a concurrent wrongdoer, then under s24AI(1)(a) of the Wrongs Act:
“the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant's responsibility for the loss or damage”.
39A defendant may avail itself of a right to seek contribution and indemnity from a joint tortfeasor under Part IV of the Wrongs Act. Alternatively, a defendant may seek to apportion its liability with another “concurrent wrongdoer” under Part IVAA of the Wrongs Act.
40Where a proceeding involves both an apportionable and non-apportionable claim, the liability for the apportionable claim is determined in accordance with Part IVAA of the Wrongs Act. Liability for the other claim is to be determined in accordance with the relevant legal rules that may apply (see subsection 24AI(2)).
41Pursuant to s24AJ of the Wrongs Act, a concurrent wrongdoer against whom judgment is given under Part IVAA in relation to an apportionable claim cannot be required to contribute or indemnify another concurrent wrongdoer in the same proceeding for the apportionable claim. Otherwise, under section 24AO, Part IV continues to apply.
42Under Part IV of the Wrongs Act, a party:
(a) seeks contribution and indemnity;
(b) the defendant joins the joint tortfeasor as a third party;
(c) the defendant seeks relief from the joint tortfeasor by way of contribution and indemnity;
(d) the joint tortfeasor is exposed to a potential liability as a result of being joined.
43Under Part IVAA of the Wrongs Act:
(a) the defendant is seeking to apportion (i.e., to dilute) liability to the plaintiff;
(b) the defendant does not join the “concurrent wrongdoer” as a third party, but applies to join the “concurrent wrongdoer” as a defendant to the proceeding;
(c) the defendant is not claiming any particular relief from the “concurrent wrongdoer” but is merely adding the person as a defendant for the purposes of comparing their respective responsibilities and (hopefully) reducing the amount which the defendant has to pay to the plaintiff;
(d) the “concurrent wrongdoer” must merely be a person whose acts or omissions caused the loss or damage that is the subject matter of the proceeding.
44The plaintiff has made a number of claims against both defendants. The second defendant submits that some of those claims are apportionable claims. For example, the breach of contract alleged at paragraph 11 of the Further Amended Statement of Claim filed 11 August 2021 alleges that KGB carried out the work without due care and skill, and paragraph 14 alleges a breach of a common law duty to duty of care. The plaintiff also presses claims which it says are not apportionable claims, such the strict liability claims set out at paragraph 8(b), which alleges that KGB would comply with various acts, ordinances, Regulations, By-laws, Orders and Proclamations, and paragraph 11, which pleads that KGB would carry out the works in accordance with the terms of the construction agreement. It is for this reason that KGB applied for leave to file and serve the Notice of Contribution.
45The first defendant submitted that the plaintiff’s claims against it were apportionable. However, the second defendant contended that the claims against the first defendant arguably also included claims that are apportionable and claims that are not apportionable.
46At paragraph 16 of the Further Amended Statement of Claim, the plaintiff alleged that the terms of the design and supervise agreement with the first defendant were:
(a) the first defendant would exercise all due and proper care and skill in the performance of the retainer;
(b) the plans drawn up by the first defendant would be, if constructed, suitable for use as a hotel;
(c) the plans drawn up by the first defendant would accord with the Australian Standards and any other applicable statutory standards;
(d) the first defendant would advise the plaintiff of any risks involved in the design or the manner of construction of which it ought to reasonably be aware;
(e) the first defendant would inspect the works on a regular basis throughout their progress and at those critical stages required under the construction agreement and by ordinary professional prudence;
(f) the first defendant would, upon such inspection, take reasonable care to detect any deficiencies in the design or construction and take all necessary and appropriate steps to have them corrected so that upon completion the building conformed with the design; and
(g) the first defendant would sufficiently inform itself whether by inspection or otherwise as to allow it to perform the role of superintendent under the construction agreement.
47At paragraph 17 of the Further Amended Statement of Claim, the plaintiff alleged that the first defendant breached the design and supervise agreement by:
(a) failing to carry out the work thereunder with due or proper care and skill;
(b) failing to ensure that its plans and specifications accorded with the Australian Standards;
(c) failing to advise the releasor about the risks inherent in its designs;
(d) failing to properly specify and detail a watertight solution to the construction to be carried out;
(e) not sufficiently inspecting the works on a regular basis throughout their progress or at those critical stages required under the construction agreement and by ordinary professional prudence;
(f) upon such inspection, not taking such reasonable care to detect any deficiencies in the design or construction or take all necessary and appropriate steps to have them corrected so that upon completion the building conformed with the design; and
(g) not sufficiently informing itself, whether by inspection or otherwise, so as to allow it to perform the role of superintendent under the construction agreement.
48In my view, the Further Amended Statement of Claim raises strict liability claims against the first defendant, such as the fitness for purpose and merchantable quality of the plans drawn up by the first defendant, which would be, if constructed, suitable for use as a hotel. It also includes that the plans drawn up by the first defendant would accord with the Australian Standards and any other applicable statutory standards. This construction is also consistent with the fact that the first defendant filed a Notice of Contribution on the second defendant on 17 July 2019 in near identical terms as the Notice of Contribution the subject of the present application.
49Both parties relied on the Court of Appeal decision in Tanah Merah v Owners Corporation[5] (“Tanah Merah”). The second defendant relied on the Court’s observations that s24AI(2) of the Wrongs Act “specifically contemplates that a proceeding may involve both an apportionable claim and a claim that is not an apportionable claim”.[6] Their Honours also said that, by applying well settled rules of construction, the word “claim” in each of these provisions (ss24AF, 24AH and 24AI) is to be given the same meaning.[7] Further, unless a contrary intention appears, words in the singular include the plural.[8] However, Tanah Merah did not consider the effect of s24AJ and 23B.
[5] Tanah Merah Vic Pty Ltd (ACN 098 935 490) v Owners Corporation No 1 of PS613436T [2021] VSCA 72 (“Tanah Merah”).
[6] Ibid at [105].
[7] Ibid at [106].
[8] Interpretation of Legislation Act 1984 (Vic) s37(c).
50The second defendant says that it is the claims against KGB that are not apportionable which are relevant to this application because it is only in relation to damages awarded against KGB for those claims for which it seeks to recover contribution under the Notice of Contribution.
51The first defendant argued that although there are separate allegations made against each defendant by the plaintiff, the same loss and damage is sought for both apportionable and unapportionable claims at paragraphs 12 and 34 of the Further Amended Statement of Claim. The first defendant claimed that there would otherwise be a contribution to the same damage whether it is an apportionable claim or unapportionable claim.
52The first defendant says that when judgment is entered against it, on the basis of the apportionable claim and its liability is the same loss and damage as the second defendant’s liability, it cannot be required to contribute to the damages as it is the same damages. It submits that s24AJ of the Wrongs Act is providing protection from such liability which would otherwise arise under Part IV. The second defendant submitted that the correct analysis must commence from the concept of “claims” rather than “damage”.
53Subsection 24AI(2) of the Wrongs Act addresses a case where there are claims which are apportionable and also claims which are not apportionable:
“(2) If the proceeding involves both an apportionable claim and a claim that is not an apportionable claim—
(a) liability for the apportionable claim is to be determined in accordance with this Part; and
(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant”.
54Therefore, Part IVAA of the Wrongs Act applies only to those claims made against KGB which are apportionable claims. I accept the second defendant’s submission that Part IVAA, and s24AJ in particular, does not apply to those claims which are not apportionable.
55Section 24AJ of the Wrongs Act provides as follows:
“Despite anything to the contrary in Part IV, a defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim—
(a) cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim; and
(b) cannot be required to indemnify any such wrongdoer”.
(Emphasis added.)
56I agree with the second defendant’s interpretation of s24AJ of the Wrongs Act. That is, that the restriction to the right to recover contribution under Part IV is only relevant to damages recovered or recoverable by the plaintiff against KGB “for the apportionable claim” and, that the restriction in s24AJ only applies to prevent a party seeking contribution for damages awarded for an apportionable claim. There is no part of s24AJ (or any other provision in Part IVAA) which extends this restriction to damages for a non-apportionable claim. This is because s24AJ is intended to prevent one concurrent wrongdoer from recovering contribution against another concurrent wrongdoer in relation to the apportionable claim in the same proceeding in circumstances where the concurrent wrongdoer has already benefited from a reduction based on its proportion of responsibility under s24AI(1).
57In Tanah Merah, the Court of Appeal at [135] said:
“As we have already observed, pt IVAA of the Wrongs Act makes provision for cases involving two or more apportionable claims37 and cases involving both an apportionable claim and a claim that is not an apportionable claim.38 If Elenberg Fraser’s submissions were to be accepted, these provisions would largely be deprived of any substantive operation. When one reads all of the provisions of pt IVAA in their context, it is plain that they operate so as to provide for multiple claims against multiple defendants in relation to the same loss and damage; and while some of those claims may be apportionable, there may be other claims which are not apportionable. Moreover, nothing in pt IVAA suggests that a claim that is not apportionable might be transformed into a claim that is apportionable by a party establishing that the circumstances upon which the claimant relies arose out of a failure to take reasonable care”.
(Footnotes original, emphasis added.)
58Where the plaintiff claims damages against the second defendant in a claim which is not an apportionable claim, then Part IVAA of the Wrongs Act does not apply. Under the strict liability claim, if KGB is held liable to the plaintiff for 100% of the damages for a claim which is not an apportionable claim, there is no restriction to seeking contribution under Part IV because s24AJ does not apply.
59Further, the first defendant claimed that the case was framed against it as a failure to take reasonable care, which is an apportionable claim. It was conceded that it was conceivable that the Court could find against the first defendant that was not on a basis of a failure to take reasonable care. However, the Deed of Release contemplated a consent to judgment by the first defendant under Part IVAA of the Wrongs Act as a concurrent wrongdoer in the amount of the Settlement Sum. The second defendant noted, however, that it is recorded that the first defendant denied liability in the Deed of Release and it is simply a private agreement between those parties.
60The question then turns to the issue of a consent judgment as opposed to a court judgment on the issue of a failure to take reasonable care. The first defendant contends that judgment against the first defendant is inevitable on the basis of a failure to take reasonable care.
61The second defendant submitted that s24AJ of the Wrongs Act only applies to defendants “against whom judgment is given”. In Godfrey Spowers (Victoria) Pty Ltd v Lincolne Scott Australia Pty Ltd & Ors[9] (“Godfrey Spowers”), the Court of Appeal emphasised the significance of judgment to the operation of Part IVAA.
[9] (2008) 21 VR 84 at [22] (“Godfrey Spowers”).
62The operation of Part IVAA of the Wrongs Act is dependent upon judgment by a plaintiff against a defendant.[10] By “judgment”, Ashley JA meant an adjudication by the court, not a consent judgment:
“…critical circumstances will depend upon findings having been made…which the Court considers just in all the circumstances, the Court being obliged to take into account the responsibility of other concurrent wrongoders…the importance of the Court’s adjudication is emphasised by this provision [ie s 24AI], as it is by s 24AJ, which naturally flows from it. The same may be said of s 24AK(1), which takes as its starting point judgment against a concurrent wrongdoer”.[11]
[10] Ibid at [104].
[11] Ibid at [105].
63Barrett J (as his Honour then was) in Reinhold v New South Wales Lotteries Corporation (No 2)[12] explained the critical role of a “judgment”, being an adjudication, to establish the facts of the case, so that the true nature of a claim could be determined.[13]
[12] (2008) 82 NSWLR 762.
[13] Ibid at [104].
64In Extension Builders Australia Pty Ltd v Bowman[14], Deputy President Aird cited Godfrey Spowers and said:
“…It is not until the hearing of the evidence that a court or tribunal can finally determine whether the delay arose from the Builder’s failure to take reasonable care and that Part IVAA applies”.
[14] [2020] VCAT 1311.
65Judge Anderson in Gandel v Krongold Constructions Pty Ltd[15] said:
“…In any event, I consider that Hunt & Hunt confirms the conclusion reached by the Court of Appeal in Godfrey Spowers that questions of whether a claim is apportionable, or another party is a ‘concurrent wrongdoer’, must be decided at trial. Until that happens, the rights of a party to claim contribution or indemnity under Part IV of the Wrongs Act are not affected”.
[15] [2014] VCC 650 at [20]–[26], [31].
66I agree with the second defendant’s contention that a plaintiff and a defendant cannot by a private agreement determine whether a claim is an apportionable claim. That is a matter which can only be determined by the Court. Until the issue is determined at trial, Part IVAA does not apply and a claim for contribution under Part IV remains viable. It is a court’s determination that triggers the powers in s24AJ, not an agreement of compromise.
67In my view, the second defendant’s Notice of Contribution seeks to recover contribution from the first defendant for damages that may be awarded in favour of the plaintiff in a judgment against the second defendant for non-apportionable claims (strict liability) which was put by the plaintiff during opening on day one of the trial as its primary claim. It is not seeking to recover contribution in relation to the apportionable claim.
68For the reasons set out above, it is open for the second defendant to seek to recover contribution against the first defendant in respect of those non apportionable claims that do not fall within the provisions of s24AJ(a) of the Wrongs Act. In the circumstances, the Notice of Contribution should not be dismissed on the basis that it has no real prospect of success.
Conclusion
69Accordingly, the summons issued by the first defendant on 14 October 2022 seeking summary judgment, alternatively, dismissing the Notice of Contribution, is dismissed.
70I propose to order that the first defendant pay the second defendant’s costs of and incidental to the application on a standard basis, to be taxed in default of agreement, unless either party has a basis for seeking a different order as to costs. I will determine any issue concerning costs on the papers.
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Certificate
I certify that these 16 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 28 October 2022.
Dated: 28 October 2022
Andrea Ko and Nikki Thomson
Associates to Her Honour Judge Burchell
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