Shamrock Civil Engineering Pty Ltd v Cleanaway Solid Waste Pty Ltd - [2025] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

Shamrock Civil Engineering Pty Ltd v Cleanaway Solid Waste Pty Ltd [2025] QCA 178

PARTIES:

SHAMROCK CIVIL ENGINEERING PTY LTD

v
CLEANAWAY SOLID WASTE PTY LTD
ABN 68 066 655 856
(appellant)
CLEANAWAY PTY LTD
ACN 120 175 635
(first respondent)
ACN 000 164 938(second respondent)

FILE NO/S:

Appeal No 97 of 2025
SC No 6807 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 313 (Freeburn J)

DELIVERED ON:

23 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2025

JUDGES:

Bond, Brown and Doyle JJA

ORDERS:

1.   The appeal is dismissed.

2.   The parties are to provide any written submissions as to the costs below and of the appeal within 7 days.

3.   The respondents are -

(a)   to provide a draft of an amended counterclaim making such amendments as it may be advised concerning a claim or claims for the indemnity under cl 10(a) of the agreement together with supporting affidavit material deposing to the matters of fact or opinion sufficient to plead its claim or claims for indemnity under cl 10(a) of the agreement by an agreed date or failing agreement as may be directed by the applications court;

(b) promptly thereafter to list the proceedings for directions in the applications court concerning the making of such amendments and the leave if any required to do so.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the respondents own and operate a waste disposal site – where pursuant to the Contract the respondents engaged the appellant to undertake earthworks and other related works at the site which progressed in three components – where the last component, Cell 3B East North, had not yet been completed – where, during a period in which no activity was occurring in the area, Cell 3B East North was affected by heavy rainfall leading to flooding, run-off seepage into the cell and the production of leachate – where the respondents alleged they incurred almost $31m to drain the area – where the respondents asserted a right of indemnity in respect of the whole or part of those sums pursuant to cl 10(a) of the Contract whereby the appellant agreed to be liable for and indemnify the respondents against any “loss, destruction or damage to any property, real or personal… arising out of or in the course of or by reason of the execution of the Works” – where the appellant contends that the primary judge erred in his construction of cl 10(a) – where the parties advance competing constructions of the meaning of the expression “arising out of or in the course of or by reason of” – whether a mere coincidental nexus of time and place is sufficient to bring the damage suffered within the ambit of the expression “arising out of or in the course of the execution” of the Works – whether the damage arose out of or…

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.

Keep reading for free

Create a free CaseChat account to read Shamrock Civil Engineering Pty Ltd v Cleanaway Solid Waste P... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] QCA 178
Decision Date: 23 September 2025

CaseChat Overview and Summary

Shamrock Civil Engineering Pty Ltd, the appellant, contested a claim by Cleanaway Solid Waste Pty Ltd, the respondent, for almost $31 million in damages incurred due to flooding and subsequent seepage into an incomplete section of a waste disposal site. The case involved interpreting a contractual indemnity clause, specifically clause 10(a), which stated that Shamrock would indemnify Cleanaway against any "loss, destruction or damage to any property, real or personal... arising out of or in the course of or by reason of the execution of the Works." The legal issues focused on whether the damage to Cell 3B East North at the disposal site arose out of, in the course of, or by reason of the execution of the Works by Shamrock. Shamrock argued that the primary judge's interpretation of the indemnity clause was erroneous and that summary judgment should have been granted in its favour.

The primary judge had refused Shamrock's application for summary judgment, finding that both points raised by Shamrock were sufficiently arguable. Shamrock's primary contention on appeal was that the primary judge's interpretation of the indemnity clause was incorrect because it did not require a causal nexus beyond mere proximity in time and place between the execution of the Works and the damage. The Court of Appeal examined the primary judge's interpretation of "arising out of or in the course of or by reason of the execution of the Works," considering whether a mere coincidental nexus of time and place was sufficient. The Court held that the primary judge's interpretation was not erroneous and that Shamrock's argument that a causal nexus was necessary was not supported by the contract's wording. The Court also noted that Cleanaway had not pleaded any failure by Shamrock to meet the contractual standard in its execution of the Works, which was necessary to establish a causal link between the execution of the Works and the damage.

In light of the appeal's dismissal, the Court ordered that Cleanaway must amend its counterclaim to plead specific facts supporting its indemnity claim under clause 10(a) and provide supporting affidavit material. The Court also directed the parties to submit written submissions on the costs of the appeal and the underlying proceedings within seven days. The case underscores the importance of precise pleading and the necessity for a clear causal link between the execution of contractual works and any claimed indemnity.

Orders

Orders of the court

1. The appeal is dismissed.

2. The parties are to provide any written submissions as to the costs below and of the appeal within 7 days.

3. The respondents are -

(a) to provide a draft of an amended counterclaim making such amendments as it may be advised concerning a claim or claims for the indemnity under cl 10(a) of the agreement together with supporting affidavit material deposing to the matters of fact or opinion sufficient to plead its claim or claims for indemnity under cl 10(a) of the agreement by an agreed date or failing agreement as may be directed by the applications court;

(b) promptly thereafter to list the proceedings for directions in the applications court concerning the making of such amendments and the leave if any required to do so.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Cleanaway relied on an affidavit of its solicitor, Simon Theodore which deposed to the opinion expressed by the Cleanaway Head of Engineering – Landfill and Remediation. His opinion was to the effect that stormwater would most likely have flowed into Cell 3B East North from other parts of the New Chum Site, some of which were and some of which were not those falling within the scope of the ‘exclusions’ (the excluded sources) identified in Qualification no 3 to Variation 59. The extent of the respective contributions could not be ascertained without more analysis.The Judgment Below At first instance, Shamrock contended that cl 10(a) of the agreement could not apply for two reasons: first that on its proper construction there had not occurred any “loss, destruction or damage to any property, real or personal”; and second, that if such loss, destruction or damage occurred it was not able to be described as “arising out of or in the course of or by reason of the execution of the Works”. The primary judge found that both points were sufficiently arguable to warrant the refusal of the application for summary judgment. Only the second of these is the subject of the appeal. Shamrock accepted (for the purposes of the application for summary judgment and on this appeal) that it was arguable that the requirement of the opening words of cl 10 were satisfied, namely that what was in issue was something which was a “liability, loss, claim or proceeding whatsoever in respect of loss, destruction or damage to any property” (being Cleanaway’s property). The primary judge turned to consider the second of the above issues and at [34]-[36] stated:“[34] The expression ‘arising out of or in the course of or by reason of the execution of the Works’ has three components. The damage can arise:(a)out of the execution of the work; or(b)in the course of the execution of the work; or(c)by reason of the execution of the work.[35]Component (c) certainly involves what could be described as a causal nexus between the damage and the execution of the work. Component (a) requires that the damage arise from the actual execution of the work. Component (b) is the least stringent of the alternatives. It merely requires that the damage arise during the course of the work. Understandably, the argument focussed on component (b).[36]The ordinary and literal meaning of component (b) does not require a causal nexus with the execution of the works. All it requires is that the damage arise in the course of the work. As counsel for Cleanaway described it, the requirement is for some proximity to the work in time and place.” The reasoning in [36] is the focus of Shamrock’s contentions on the appeal. In substance it contends that summary judgment ought to have been granted because, absent some identified and pleaded nexus between the ‘course of the execution of the Works’ and the event giving rise to the damage claimed, beyond the mere proximity of place and time identified by the primary judge, the indemnity under cl 10 is not engaged.

Ratio Decidendi

Legal Principle Established

It was no part of Cleanaway’s case urged before the primary judge, or indeed in the counterclaim as it was at the time of that application, to claim that Shamrock has defaulted in the performance to the contractual standard, of any aspect of the Work in a way that was causally responsible in whole or part for the damage the subject of the claim for indemnity. The more recently amended counterclaim does not take that any further.Rule 293 Considerations Shamrock sought summary judgment in respect of “the claim for indemnity under clause 10 of the Master Agreement which is claimed in paragraphs 1(a) and 2 of the prayer for relief in the Second Further Amended Defence and Counterclaim filed 20 November 2024… and in paragraphs 16 to 21 of the Counterclaim”. The primary judge refused that summary judgment based on his Honour’s erroneous construction of cl 10(a). It remains for this Court to determine what follows from this. To grant summary judgment the Court needs to be satisfied of the two things mentioned in r 293. The first, is whether Cleanaway has no real prospects of succeeding on that part of its claim. The difficulty for Cleanaway is that neither of the cases which adopt the default nexus construction has been pleaded. That is not always a difficulty. The guiding approach to be taken by courts in applications for summary judgment by a defendant to a counterclaim was stated in Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) [2017] QSC 75 at [17], adopting the statement of principle in Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211 at [54]. The power to enter summary judgment should be exercised only where it can be said there is no real prospect of success on the claim, and not merely because that real prospect only appears from the material and not necessarily from the pleading. The observations of Jackson J in Haggarty v Wood (No 2) [2015] QSC 244 at [81] should not be applied in a way inconsistent with this approach. There his Honour stated – “[81] …an application under r 293 UCPR presupposes that the defendant has filed a defence in response to a properly prepared and filed claim and statement of claim, so the court should not be too wary of treating a plaintiff as having nailed their colours to the mast. That approach is all the more justified where the plaintiff has had numerous attempts to articulate their case over a lengthy period.” However, as mentioned, there is no material which identifies the steps which it is said Shamrock ought to have taken under cl 7.1 of the agreement, but in breach did not take, which are to be relied on as causally connected with the damages claimed by Cleanaway. On the material filed it could not be said Cleanaway has established that it has real prospect of success, quite apart from the deficiencies in its pleadings. As to the guarantee contention, the reader of the material is left to guess what case is being advanced, but it seems to be that because damage was sustained it must be inferred that some default in the provision of stormwater management and protection of the works contributed as a cause. It is not a case which, on the material, it can be said Cleanaway has established that it has real prospect of success.Need for a Trial as to Part of Claim

CITATION:	Shamrock Civil Engineering Pty Ltd v Cleanaway Solid Waste Pty Ltd [2025] QCA 178
PARTIES:	SHAMROCK CIVIL ENGINEERING PTY LTD v CLEANAWAY SOLID WASTE PTY LTD ABN 68 066 655 856 (appellant) CLEANAWAY PTY LTD ACN 120 175 635 (first respondent) ACN 000 164 938(second respondent)
FILE NO/S:	Appeal No 97 of 2025 SC No 6807 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2024] QSC 313 (Freeburn J)
DELIVERED ON:	23 September 2025
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2025
JUDGES:	Bond, Brown and Doyle JJA
ORDERS:	1. The appeal is dismissed. 2. The parties are to provide any written submissions as to the costs below and of the appeal within 7 days. 3. The respondents are - (a) to provide a draft of an amended counterclaim making such amendments as it may be advised concerning a claim or claims for the indemnity under cl 10(a) of the agreement together with supporting affidavit material deposing to the matters of fact or opinion sufficient to plead its claim or claims for indemnity under cl 10(a) of the agreement by an agreed date or failing agreement as may be directed by the applications court; (b) promptly thereafter to list the proceedings for directions in the applications court concerning the making of such amendments and the leave if any required to do so.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the respondents own and operate a waste disposal site – where pursuant to the Contract the respondents engaged the appellant to undertake earthworks and other related works at the site which progressed in three components – where the last component, Cell 3B East North, had not yet been completed – where, during a period in which no activity was occurring in the area, Cell 3B East North was affected by heavy rainfall leading to flooding, run-off seepage into the cell and the production of leachate – where the respondents alleged they incurred almost $31m to drain the area – where the respondents asserted a right of indemnity in respect of the whole or part of those sums pursuant to cl 10(a) of the Contract whereby the appellant agreed to be liable for and indemnify the respondents against any “loss, destruction or damage to any property, real or personal… arising out of or in the course of or by reason of the execution of the Works” – where the appellant contends that the primary judge erred in his construction of cl 10(a) – where the parties advance competing constructions of the meaning of the expression “arising out of or in the course of or by reason of” – whether a mere coincidental nexus of time and place is sufficient to bring the damage suffered within the ambit of the expression “arising out of or in the course of the execution” of the Works – whether the damage arose out of or…