OXLEY COUNTY COUNCIL v MACDONALD & ORS; BRAMBLES HOLDINGS LIMITED v MACDONALD & ORS [1999] NSWCA 126
FILE NUMBER(S):
CA 40117/97; 40121/97
HEARING DATE(S):
13 April 1999
JUDGMENT DATE:
2 July 1999
PARTIES :
Oxley County Council Ronier Godfrey MacDonald Brambles Holdings Limited Leslie Thomas Page Rosalie Anne Page Patuse Pty Limited
JUDGMENT OF:
Priestley JA at 1; Sheller JA at 2; Powell JA at 80
LOWER COURT JURISDICTION:
Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :
15000/88
LOWER COURT JUDICIAL OFFICER:
Bruce J
COUNSEL:
Appeal 40117/97 J A Timbs QC/M L Williams - A B H K Donovan QC/G R Graham - R1 D Nock SC/G M Gregg - R2 J D Hislop/I J McGillacuddy - R4
Appeal 40121/97 D Nock SC/G M Gregg - A B H K Donovan QC/G R Graham - R1 J A Timbs QC/M L Williams - R2 J D Hislop QC/I J McGillacuddy - R3 R4 R5
SOLICITORS:
Appeal 40117/97 Sparke Helmore - A T D Kelly & Co - R1 Colin Biggers & Paisley - R2 McLachlan Chilton - R4
Appeal 40121/97 Colin Biggers & Paisley - A T D Kelly & Co - R1 Sparke Helmore - R2 J M Crestani - R3 R4 McLachlan Chilton - R5
CATCHWORDS:
NEGLIGENCE - co-tortfeasors - apportionment of liability - whether unreasonable or plainly unjust; CONTRACT - implied term - breach - measure of damage - application of s5 (1) of Law Reform (Miscellaneous Provisions) Act 1946 - remoteness of damage; PRACTICE & PROCEDURE - costs - Bullock order
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40117/97; 40121/97 CL 15000/88
PRIESTLEY JA
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Oxley County Council v Macdonald [1999] NSWCA 126
Case
[1999] NSWCA 126
Decision Date
CaseChat Overview and Summary
Oxley County Council appealed against a judgment of the Supreme Court of New South Wales, which had found the Council liable in negligence to the respondent, Macdonald, and had also made orders regarding costs. The dispute arose from a contract for the supply and installation of certain electrical equipment by the Council to Macdonald. Macdonald alleged that the equipment was defective and that the Council had breached its contractual obligations and was also negligent in its performance.
The primary legal issues before the Court of Appeal were whether the trial judge had erred in apportioning liability between the Council and another party, and whether the measure of damages awarded for breach of contract was appropriate, particularly in light of the principles of remoteness and the application of s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The Court also considered the appropriateness of a *Bullock* order concerning costs.
The Court of Appeal found that the trial judge had erred in his assessment of the apportionment of liability between the Council and the other party, concluding that the apportionment was unreasonable and plainly unjust. Furthermore, the Court determined that the damages awarded for breach of contract were not properly calculated, as they did not adequately account for the principles of remoteness of damage. The Court also found that the *Bullock* order for costs was not justified in the circumstances.