Pars 20 and 21 of the defendant's Technology and Construction List Response be struck out
CATCHWORDS:
PRACTICE AND PROCEDURE – Pleading requirements for a person claiming to be one of two or more persons whose acts or omissions caused the loss that is the subject of an apportionable claim under Pt 4 of the Civil Liability Act 2002 (NSW) – principles applying to applications to strike out pleadings upon which Pt 14 r14.28 UCPR is based, apply with equal force to proceedings in the Technology and Construction List - CIVIL LIABILITY ACT 2002 – Pt 4 does not apply if the liability arose before 26 July 2004 and therefore cannot be pleaded as a defence to a liability arising before that date
1 This is an application by motion to strike out two paragraphs of the defendant’s Construction and Technology List Response (“the Response”) invoking the Proportionate liability provisions in Pt 4 of the Civil Liability Act 2002 (NSW) (“the Act”). The Act came into force on 20 March 2002. Part 4 was introduced into the Act by the Civil Liability Amendment (Personal Responsibility) Act2002 (NSW) which came into force on 1 December 2004.
2 The application raises what might be considered to be the significant issue of what is required to be pleaded by a party wishing to raise the defence contemplated by ss 34 and 35 (within Pt 4) of the Act that his or her liability is to be limited because he or she is, in relation to the claim against him or her, a concurrent wrongdoer, that is, a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other…
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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Details
AGLC
Ucak v Avante Developments Pty Ltd [2007] NSWSC 367
Case
[2007] NSWSC 367
Decision Date
CaseChat Overview and Summary
In the case of Ucak v Avante Developments Pty Ltd, the plaintiff sought damages for injuries sustained in a workplace accident. The dispute involved the application of the Civil Liability Act 2002 (NSW), specifically regarding the apportionment of liability when multiple parties are responsible for the same loss. The matter was heard in the Supreme Court of New South Wales.
The central legal issue was whether the Civil Liability Act 2002 (NSW) Pt 4, which governs the apportionment of liability in cases involving multiple tortfeasors, could be applied to claims arising from events that occurred before the commencement of Pt 4 on 26 July 2004. The plaintiff argued that the Act applied retroactively, while the defendant contended that it did not. The court had to determine whether the principles governing applications to strike out pleadings in Pt 14 r14.28 of the Uniform Civil Procedure Rules 2005 (NSW) applied equally to proceedings in the Technology and Construction List.
The court found that the Civil Liability Act 2002 (NSW) Pt 4 did not apply to claims arising from events that occurred before 26 July 2004. The court reasoned that the Act's provisions were intended to govern future claims and did not have retrospective effect. The court also noted that the principles governing applications to strike out pleadings in Pt 14 r14.28 UCPR applied with equal force to proceedings in the Technology and Construction List. Consequently, the plaintiff's claim for apportionment of liability under Pt 4 was dismissed.
The court ordered that the defendant's application to strike out the plaintiff's claim for apportionment of liability under Pt 4 of the Civil Liability Act 2002 (NSW) be granted. The plaintiff was directed to amend the pleadings to exclude any reference to apportionment under Pt 4, and the case proceeded on the basis of the plaintiff's claims for damages arising from events before 26 July 2004.