Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2)

In *Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2)*, the New South Wales Court of Appeal considered an appeal and a notice of contention concerning the application of Part 4 of the *Civil Liability Act 2002* (NSW) to a contractual indemnity. The dispute arose from a claim by Perpetual Trustee Company Ltd (Perpetual) against CTC Group Pty Ltd (CTC) under an indemnity agreement, following losses incurred by Perpetual.

The primary legal issues before the Court of Appeal were whether Part 4 of the *Civil Liability Act 2002* applied to the claim, specifically whether the contractual indemnity excluded its operation, whether the claim constituted "an action for damages" and whether it arose from a "failure to take reasonable care" within the meaning of the Act. The Court also considered whether Perpetual and CTC were concurrent wrongdoers who caused the same loss.

The Court reasoned that the indemnity agreement did not operate to exclude the application of Part 4 of the *Civil Liability Act 2002*. It held that the claim for indemnity was an "action for damages" and that the underlying cause of action involved a failure to take reasonable care. Consequently, the principles of proportionate liability under Part 4 were engaged. The Court dismissed CTC's notice of contention, which sought to argue that Part 4 did not apply.

The Court of Appeal confirmed the orders made on 13 August 2012 and ordered that CTC pay Perpetual's costs of its notice of motion filed on 24 August 2012.