Ventia Utility Services Pty Ltd (ACN 010 725 247) (Formerly Known As Thiess Services Limited) v Electricity Networks Corporation T/As Western Power [No 2]
[2024] WASC 4
•15 JANUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VENTIA UTILITY SERVICES PTY LTD (ACN 010 725 247) (FORMERLY KNOWN AS THIESS SERVICES LIMITED) -v- ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER [No 2] [2024] WASC 4
CORAM: ARCHER J
HEARD: 4 DECEMBER 2023
DELIVERED : 15 JANUARY 2024
FILE NO/S: CIV 1195 of 2023
BETWEEN: VENTIA UTILITY SERVICES PTY LTD (ACN 010 725 247) (FORMERLY KNOWN AS THIESS SERVICES LIMITED)
Plaintiff
AND
ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER
First Defendant
NOREEN MERLE CAMPBELL
Second Defendant
Catchwords:
Preliminary determination of issues - Recoupment claim - Did the payment benefit the defendant - Did the liability fall on both parties
Legislation:
Nil
Result:
Questions answered 'no'
Plaintiff not entitled to recoupment
Category: B
Representation:
Counsel:
| Plaintiff | : | S C M Wong |
| First Defendant | : | M J Sims SC |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Wotton + Kearney Lawyers |
| First Defendant | : | DLA Piper Australia |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Commonwealth v McCormack (1984) 155 CLR 273
Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195
Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [2013] WASC 301
Harris v Miller [2013] NSWSC 1902
Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S2)
Herridge v Electricity Networks Corporation t/as Western Power [2019] WASC 94 (S)
Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Limit (No 3) Ltd v Ace Insurance Ltd [2009] NSWSC 514
Morgan Equipment Co v Rodgers (1993) 32 NSWLR 467
The State of Western Australia v Cunningham [2018] WASCA 207
Ventia Utility Services Pty Ltd (ACN 010 725 247) (formerly known as Thiess Services Limited) v Electricity Networks Corporation t/as Western Power [2023] WASC 381
ARCHER J:
Introduction
On 28 September 2023, I decided that three questions should be determined separately (and before) the trial of the action.[1] The trial of the first two questions occurred on 4 December 2023. These reasons explain my answers to those two questions.
[1] Ventia Utility Services Pty Ltd (ACN 010 725 247) (formerly known as Thiess Services Limited) v Electricity Networks Corporation t/as Western Power [2023] WASC 381.
The first question asks whether the plaintiff (Ventia) is entitled to recoupment from the first defendant (Western Power) of payments Ventia made to the property owners in the Parkerville bushfire litigation. Ventia made the payments following a first instance determination that it was 70% liable for the property owners' loss. On appeal, this determination was set aside and Ventia was found liable for only 35% of the loss.
The second question asks whether Ventia is entitled to recoupment of part of the fees it paid to its expert witnesses.
The simplicity of the questions is deceiving. Ventia is not seeking restitution from the property owners. It seeks restitution from Western Power. Western Power was found not to be liable at first instance, but found to be partly responsible on appeal. To answer the questions, it is necessary to determine, among other things, whether the overpayments benefited Western Power. This requires considering the impact of the legislative scheme of proportionate liability for concurrent wrongdoers, the impact of settlement agreements made between Ventia and some of the property owners, and whether there is any good reason why Western Power would not 'ratify' Ventia's overpayments. It also requires consideration of whether it can be said that the liability to make the overpayments fell on both Ventia and Western Power.
As will be seen, if Ventia is correct, Western Power will have to pay more to Ventia than it would have had to pay the property owners if it had been found liable at first instance. What follows are my reasons for concluding that Ventia is not correct.
I record at the outset my appreciation of the high‑quality advocacy demonstrated by both counsel.
Background[2]
[2] Much of this section reproduces what I wrote in Ventia Utility Services Pty Ltd (ACN 010 725 247) (formerly known as Thiess Services Limited) v Electricity Networks Corporation t/as Western Power [2023] WASC 381.
On 12 January 2014, a jarrah pole supporting electrical cables fell to the ground causing electrical arcing. This ignited dry vegetation around the base of the pole. The fire spread and became what is known as the Parkerville bushfire.
The pole was owned by, and on the property of, the second defendant (Mrs Campbell).
Western Power is the network operator which distributed electricity from its network to Mrs Campbell by a service cable attached to the jarrah pole.
Western Power engaged Ventia, then known as Thiess Services Pty Ltd, to carry out works on the jarrah pole.
People whose property had been destroyed or damaged by the fire (Plaintiffs) sued Ventia, Western Power and Mrs Campbell in six different proceedings. The Plaintiffs alleged that they had suffered loss due to the negligence of, or the nuisance created by, each of the defendants.
His Honour Justice Le Miere tried questions of the defendants' liability in four of the proceedings (Actions), and also determined the quantum of the loss of two of the Plaintiffs Mr and Mrs Elwood (Lead Plaintiffs). I will refer to the Lead Plaintiffs and the other Plaintiffs in the Actions collectively as the 'Action Plaintiffs'.[3]
[3] That is, the 'Action Plaintiffs' group excludes the plaintiffs in the two proceedings not tried by Le Miere J. As will be seen, those proceedings are referred to as the Pontague Proceedings and the Krepp Proceedings.
Justice Le Miere found that both Ventia and Mrs Campbell were liable. His Honour found that Western Power was not. His Honour apportioned liability between Ventia and Mrs Campbell: 70% to Ventia and 30% to Mrs Campbell.[4] His Honour also ordered Ventia and Mrs Campbell to jointly and severally pay 80% of the Action Plaintiffs' costs. His Honour expressly declined to make a costs order apportioning liability for the Action Plaintiffs' costs on the basis of fault.[5] I will refer to the orders made by Le Miere J as the 'Primary Orders', and the costs order within those orders as the 'Primary Costs Order'.
[4] Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94 and Herridge v Electricity Networks Corporation t/as Western Power [2019] WASC 94 (S) (Le Miere J's Orders Decision).
[5] Le Miere J's Orders Decision [52] ‑ [53].
The Action Plaintiffs appealed.[6] The Court of Appeal allowed the appeal in part. The Court re‑apportioned liability as being 50% to Western Power, 35% to Ventia and 15% to Mrs Campbell.[7] The Court of Appeal ordered that the defendants jointly and severally pay the Action Plaintiffs' costs to 20 September 2019 (being the date the Primary Orders were made).
[6] Western Power notes, in its Amended Defence dated 7 July 2023 (Defence) [13], that the costs order was not appealed.
[7] Statement of Claim dated 23 February 2023 (Statement of Claim) [14]; Defence [14].
Prior to the Court of Appeal's decision, Ventia made payments to the Action Plaintiffs in accordance with Le Miere J's Primary Orders (Payments). After the Court of Appeal's decision, Ventia sought restitution orders in respect of part of the Payments from the Court of Appeal. The Court of Appeal dismissed the application, but did not preclude Ventia from bringing new proceedings in the general division to seek such orders.[8]
[8] Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S2) [31].
Following the Court of Appeal's decision, Western Power made a number of payments to Ventia. Western Power agreed to make the payments subject to the Court of Appeal's orders remaining undisturbed on appeal to the High Court and to Western Power obtaining an effective discharge of its obligations to the Plaintiffs.[9] The High Court dismissed Western Power's appeal.[10]
Current Action
[9] Proposed Statement of Agreed Facts and Assumptions filed 8 November 2023 (Agreed Facts) [14.1]. Despite the title, the document was agreed.
[10] Agreed Facts [15].
On 23 February 2023, Ventia commenced the current proceedings against Western Power and Mrs Campbell seeking restitution. On 20 July 2023, Ventia informed the court that the proceedings against Mrs Campbell had been resolved.
In these proceedings, Ventia seeks that Western Power make additional payments to Ventia. The additional payments sought fall into five categories:[11]
1.'Western Power's Unpaid Interest' - $527,888.15;
2.'Western Power's Unpaid Liability Costs' - $3,982,481.00;
3.'Western Power's Unpaid Damages Assessment Costs' - $745,079.94;
4.'Western Power's Unpaid Krepp Proceedings Costs' - $67,500.00; and
5.'Western Power's Unpaid Expert Costs' - $289,136.97.
Application for preliminary determination
[11] Statement of Claim [18] ‑ [21].
The parties engaged in settlement negotiations. Those negotiations were hampered by disputes as to issues of principle. In particular:[12]
1.the calculation of interest payable; and
2.whether the appropriate share of costs to be paid by Western Power should be one‑third (equally among the three defendants) or one‑half (by liability).
[12] Affidavit of Robin Maurice Shute sworn 3 July 2023 [10].
Ventia sought a preliminary determination of four questions. I was satisfied that there should be a preliminary determination of three of those questions:
1.Is Ventia entitled to restitution from Western Power, by way of contribution, recoupment or otherwise, in respect of amounts pleaded in paragraphs 10.1, 10.2 and 10.5 of the Statement of Claim dated 23 February 2023 paid to the plaintiffs in the proceedings listed in paragraph 5 of the Statement of Claim for damages and interest on damages under:
(a)the judgments pleaded in paragraph 7.1 of the Statement of Claim; and/or
(b)the settlement agreements pleaded in paragraph 9 of the Statement of Claim?
2.Is Ventia entitled to restitution from Western Power, by way of contribution, recoupment or otherwise, in respect of amounts it has paid to experts in relation to the assessment of damages of non‑lead plaintiffs in the proceedings listed in paragraph 6 of the Statement of Claim?
3.Assuming (without deciding) that the joint and several liability of Ventia, Western Power and Mrs Campbell under the costs order pleaded in paragraph 14.7 of the Statement of Claim was discharged in full, would Ventia, Western Power and Mrs Campbell be bound, as amongst themselves, to contribute to the discharge of that liability:
(a)equally; or
(b)50% as to Western Power, 35% as to Ventia and 15% as to Mrs Campbell?
The hearing of questions 1 and 2 was listed for 4 December 2023. The hearing of question 3, in which Mrs Campbell has an interest, was listed for 15 January 2024.
In these reasons, I will refer to Ventia and Western Power as 'the parties'.
Question 1 - context
Question 1 relates to Ventia's claim for 'Western Power's Unpaid Interest'.
Question 1 refers to paragraphs 10.1, 10.2 and 10.5 of the Statement of Claim. Those paragraphs assert that Ventia made the following payments:
10.1the actionable damages suffered by the Lead Plaintiffs, Mr G Elwood and Mrs S Elwood, in the amount of $542,313.25, together with interest of $165,048.36;
10.270% of the actionable damages suffered by the non‑Lead Plaintiffs in the Actions as a result of the Parkerville Bushfire, together with interest at 6% per annum from the date of the fire;
…
10.570% of the amounts of damages claimed in the Pontague Proceedings and in the Krepp Proceedings and costs of $135,000 claimed in the Krepp Proceedings.
As noted earlier, I refer to these payments as the 'Payments'. Further, I will refer to the Plaintiffs referred to in paragraphs 10.2 and 10.5 as the 'Settlement Plaintiffs'.[13] I will refer to the payments made to the Settlement Plaintiffs as the 'Settlement Payments'.[14]
[13] Therefore, the 'Settlement Plaintiffs' group excludes only the Lead Plaintiffs (as they were the only plaintiffs whose loss was determined judicially).
[14] Therefore, the 'Settlement Payments' are the Payments made to all of the plaintiffs except the Lead Plaintiffs (as the payments to them were made following Le Miere J's determination of the quantum of their loss).
It is common ground on the pleading that Western Power paid to Ventia 50% of the sums that had been paid by Ventia in relation to damages.
It is also common ground that Western Power paid to Ventia some of the interest that Ventia had paid. The interest Western Power paid equates to simple interest accruing at 6% per annum from the date of the fire on 50% of the actionable damages[15] suffered by the Plaintiffs (Damages Interest).[16] In simple terms,[17] Damages Interest is the interest Western Power would have had to pay to the Plaintiffs following the Court of Appeal decision, disregarding the impact of any obligation to give restitution to Ventia.
[15] As determined by Le Miere J (in the case of the Lead Plaintiffs) or as agreed between Ventia and the Settlement Plaintiffs.
[16] There are some ambiguities in the pleading. However, as this was common ground, the ambiguities need not be expressly addressed at this stage. In any event, the resolution of the ambiguities would not affect the analysis.
[17] Assuming pre‑judgment interest is awarded in the usual terms under s 32 of the Supreme Court Act 1935 (WA). Post‑judgment interest is regulated by s 8(1) of the Civil Judgments Enforcement Act 2004 (WA).
If Ventia is entitled to restitution from Western Power, it would be entitled to more. The parties agree that Western Power would have to pay simple interest at 6% per annum on each outstanding sum to which Ventia is entitled as restitution from the date or dates on which Ventia's entitlement to restitution accrued until the date or dates on which each such sum is or was paid (Restitution Interest). In simple terms, in addition to paying 50% of each sum Ventia paid by way of damages and interest, Western Power would also have to pay interest on each payment, calculated from the date of each payment.[18]
[18] I have not considered whether this agreement is correct. This is because, even if the parties are wrong it would make no practical difference to the outcome. It would be a pyrrhic victory if Ventia established it was entitled to recoupment if the extent of that entitlement did not include the Restitution Interest.
Question 1 asks whether Ventia is entitled to restitution from Western Power in relation to the Payments. Western Power formally accepts that if the answer to Question 1 is 'Yes', then it follows that Ventia would be entitled to the Restitution Interest. For the purposes of answering the preliminary questions, the parties agree that this sum would be $527,888.15.[19]
[19] Statement of Claim [18.1], [19], [21] and Schedule A. Western Power accepted this figure for the purposes of the hearing - see ts 100.
Question 2 - context
Question 2 relates to Ventia's claim for 'Western Power's Unpaid Expert Costs'. Ventia claims 50% of payments it made to its experts in defending and settling the assessment of damages of the non‑Lead Plaintiffs in the Actions and in resolving the other two proceedings. Those payments are pleaded in paragraphs 11 and 12 of the Statement of Claim. The sum due is said to be $289,136.97.[20]
[20] Statement of Claim [18.5].
It was common ground that, if Question 1 was answered 'no', then the answer to Question 2 must also be 'no'.
Law
Restitution - contribution and recoupment
The parties were broadly in agreement as to the applicable legal principles. For that reason, the summary that follows is largely taken from one of the leading textbooks in this area: Mason & Carter's Restitution Law in Australia.[21]
[21] Mason & Carter's Restitution Law in Australia (4th ed, 2021).
The right to contribution arises when the plaintiff has paid more than its proper share towards discharging a common obligation.[22] It is not enough that the plaintiff's payment benefited the defendant.[23] The right can only arise when the plaintiff and defendant are both liable for the same loss.[24] Contribution will not lie where the plaintiff and defendant are liable for distinct and specific portions of a loss. This is because any payment by the plaintiff would not have discharged the defendant's liability. The defendant would have remained liable for its distinct part of the loss.[25]
[22] Restitution Law in Australia [610].
[23] Restitution Law in Australia [623].
[24] Restitution Law in Australia [621].
[25] Restitution Law in Australia [621].
The right to recoupment arises when the plaintiff has paid an obligation for which, as between the plaintiff and the defendant, the defendant was primarily liable. In such a case, the payment by the plaintiff benefited the defendant.[26]
[26] Restitution Law in Australia [634] (and see [601] ‑ [602]).
In Restitution Law in Australia, the authors say (citations omitted):[27]
Rights of contribution and recoupment derive from a single source, namely the injustice of the defendant having had its burden relieved by the plaintiff. But a right of recoupment differs in its application from contribution because there is no 'equality': rather the respective positions of P and D are such that it is just that P should throw the whole burden of P's liability to X upon D's shoulders. If it were otherwise, D would be seen to have received an unjust benefit (that is, the effective release of the burden to X) at the expense of P who bore it. Thus, in the standard guarantee situation a guarantor (P), who is forced to meet the creditor's (X's) claim, is entitled as against the principal debtor (D) to recoupment in full for the outlay. This is one example of a broader principle, as Lord Wright MR demonstrated in Brook's Wharf and Bull Wharf Ltd v Goodman Bros:
'The essence of the rule is that there is a liability for the same debt resting on the plaintiff and the defendant, and the plaintiff has been legally compelled to pay, but the defendant gets the benefit of the payment, because his debt is discharged either entirely or pro tanto, whereas the defendant is primarily liable to pay as between himself and the plaintiff.'
[27] Restitution Law in Australia [625]. This passage in an earlier edition of the text was cited with approval in Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 [239] (Giles JA, with whom Handley and Stein JJA agreed).
A right of recoupment will only arise if the following three conditions are met:[28]
1.the plaintiff's payment must relate to a liability falling upon the plaintiff and the defendant;
2.the plaintiff's payment must have benefited the defendant; and
3.the plaintiff must not have been officiously exposed to the liability.
[28] Restitution Law in Australia [632] ‑ [636]. Although expressed by the authors in tentative terms ('it appears to depend on three requirements'), the discussion that followed demonstrated that the authors considered that a right of recoupment would only arise if each of these requirements were met. The parties agreed these were the requirements - see the Plaintiff's Submissions as to Preliminary Questions (Ventia's Submissions) [11] and ts 62 ‑ 63 and the First Defendant's Submissions on Separate Trial of Preliminary Questions (Western Power's Submissions) [14]. See also Karacominakis [239] (Giles JA, with whom Handley and Stein JJA agreed).
There was a dispute between the parties as to whether the first condition requires that the plaintiff and defendant have coordinate liabilities in relation to a common burden. I will discuss this later.
To establish a right to contribution or recoupment, it is not necessary that the payment formally discharge the liability of another. A practical benefit is sufficient. The authors of Restitution Law in Australia comment on this as follows (citations omitted):[29]
[622] P's right does not depend upon formal discharge of D's debt, but rather upon D's enrichment (in an objective sense) because of the unlikelihood (verging on a certainty) that the original creditor will sue D for the debt which P has paid unofficiously in consequence of the creditor's lawful pressure on P. Australian cases support the proposition … that one part-owner who pays off the debt of another part-owner is presumed to intend to stand in the shoes of the creditor. If D is sued by the original creditor, D can affirm P's payment and thereby obtain a discharge of the original debt.
[636] In our view it will be enough if P, being under an immediate or threatened liability, unofficiously pays D's liability in circumstances where D obtained a practical benefit thereby. If D adopts that benefit, D may be estopped from repudiating liability. So long as, between P and D, it is just that D recoup P, the question whether D's debt has been formally discharged is irrelevant. There will seldom be any good reason why D would choose not to adopt the benefit by ratifying the previously unauthorised payment, thereby becoming formally armed with a defence against being sued twice by the creditor.
…
The principle underlying rights of contribution and recoupment does not base itself upon the discharge by P of D's obligation in the sense of a formal extinguishment thereof. Rather, the right arises from the application of the principles expressed by the maxim qui sentit commodum, sentire debet et onus [he who receives advantage must also bear the burden].
[29] Restitution Law in Australia [622] and [636].
Ventia submits that the requirement in the first of those paragraphs that there be an 'unlikelihood (verging on a certainty) that the original creditor will sue D for the debt which P has paid' arises only in contribution claims, and not in relation to recoupment claims. It points out that [622] fell under the heading of 'Contribution', while [636] fell under the heading of 'Recoupment'.[30] I do not accept this. In my view, the context demonstrates that the authors were discussing this concept in relation to both contribution and recoupment.[31] That said, even if I accept Ventia's submission, it would not make a difference to the analysis. As I will later explain, I consider that there is a very good reason why Western Power would not ratify the payments.
Civil Liability Act
[30] ts 78.
[31] See the last paragraph of [621] and footnotes 166 and 167 to [622] and the numerous references to contribution and recoupment in [636].
The Civil Liability Act2002 (WA) sets up a scheme of proportionate liability for 'concurrent wrongdoers'[32] in 'apportionable claims'.[33] It is designed to allocate to plaintiffs the risk that one wrongdoer may be insolvent.[34]
[32] Defined in s 5AI to mean, in relation to a claim, a person who is one of two or more persons whose act or omission caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
[33] Defined in s 5AI to include a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care (but not including any claim arising out of personal injury).
[34] See The State of Western Australia v Cunningham [2018] WASCA 207 [117] ‑ [119].
Section 5AL of the Civil Liability Act provides:
5AL.Contribution not recoverable from defendant
(1)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 or contribution recovered from another concurrent wrongdoer in respect of an apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and
(b)cannot be required to indemnify any such wrongdoer.
(2)Subsection (1) does not affect an agreement by a defendant to contribute to the damages recoverable from or to indemnify another concurrent wrongdoer in relation to an apportionable claim.
Western Power notes that s 5AL expressly provides that a concurrent wrongdoer cannot be required to contribute to damages recovered from another concurrent wrongdoer. It further submits that s 5AL(1)(b) implicitly prevents a claim of recoupment.[35]
[35] ts 105.
In Restitution Law in Australia,[36] the authors note that proportionate liability legislation impacts upon contribution rights touching apportionable claims. The authors of the Review of the Law of Negligence, Final Report observed that:[37]
Under a system of proportionate liability, there are, necessarily, no rights to contribution.
[36] Restitution Law in Australia [609].
[37] Commonwealth of Australia, Review of the Law of Negligence, Final Report (2002) 179 [12.24], cited by Kenneth Martin J in Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [2013] WASC 301 [32].
In Dymocks Book Arcade Pty Ltd v Capral Ltd,[38] McDougall J discussed the apportionment regime under the relevantly equivalent pt 4 of the Civil Liability Act 2002 (NSW) as follows:
[T]he purpose of [the apportionment regime] is to enable that apportionment of liability to occur in the action brought by the plaintiff, whether or not those responsible for any damage suffered by the plaintiff have been joined as concurrent wrongdoers. Thus, as [the apportionment regime] works its way out, the judgment given against a concurrent wrongdoer who is a defendant will represent only that concurrent wrongdoer's proportion of responsibility. It will not reflect any proportion of responsibility that the court attributes to any other concurrent wrongdoer. It follows, in my view necessarily, that when a judgment is given against a concurrent wrongdoer in respect of an apportionable claim, that judgment is not one in respect of which the concurrent wrongdoer is entitled to contribution or indemnity from any other concurrent wrongdoer. That is because, on the hypothesis that [the apportionment regime] requires to be considered, no other concurrent wrongdoer has contributed to the particular loss which is the particular or apportioned responsibility of the concurrent wrongdoer who is sued and against whom a judgment is given.
[38] Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195 [9]. See also Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [31] ‑ [38].
Western Power submits that a concurrent wrongdoer in an apportionable claim cannot claim recoupment or contribution from another concurrent wrongdoer, by s 5AL of the Civil Liability Act and by the operation of the proportionate liability scheme as a whole. It is unnecessary to determine the precise scope of s 5AL. I accept that, by the operation of the proportionate liability scheme as a whole, a concurrent wrongdoer in an apportionable claim cannot claim recoupment or contribution from another concurrent wrongdoer in relation to the first wrongdoer's own distinct proportion of liability.[39]
[39] See the articles cited in footnote 26 to [609] of Restitution Law in Australia (and the cases cited earlier in relation to contribution - Dymocks Book Arcade [9] and Fudlovski [31] ‑ [38]).
Western Power submits that Ventia therefore has no right to recoupment or contribution because Western Power's liability is distinct from Ventia's liability.
Ventia does not dispute that the parties are concurrent wrongdoers in apportionable claims. Ventia does not dispute that it was found liable for 35% of the damage, while Western Power was found liable for 50%, and that the two liabilities are distinct. Ventia did not expressly address Western Power's submissions in relation to the operation of the Civil Liability Act.[40] However, I assume that Ventia would say that the Civil Liability Act does not prevent it from seeking recoupment as it is not seeking recoupment of what it paid in relation to its own liability but rather what it says was effectively a payment of part of Western Power's liability.
Restitution where primary judgment set aside
[40] See ts 68 ‑ 70.
Western Power submits that Ventia's remedy lies against the Plaintiffs. It notes that, as Ventia's liability was reduced on appeal, Ventia could seek restitution from the Lead Plaintiffs. It notes that Ventia chose to settle with the other Plaintiffs, and chose to agree the terms on which it could seek restitution from the other Plaintiffs.
Again, there appeared to be no dispute as to the applicable legal principles where a primary judgment is set aside on appeal. The relevant principles are set out in Restitution Law in Australia[41] and may be summarised as follows:
1.A party who has satisfied a judgment for the payment of money is entitled to repayment of the money paid, with interest, if the judgment is set aside on appeal.
2.The court seeks to restore what was taken from the appellant by the wrong judgment. It does not seek to restore the successful appellant to its former position by awarding damages to compensate for loss flowing from the erroneous judgment.
3.The appellant is entitled to interest on the money paid because the interest is seen as the 'fruit' of money.
4.Restitutionary defences are available in principle. However, if an appeal against the primary judgment is lodged in a timely fashion, it may be difficult for the respondent to establish a change of position defence.
[41] Restitution Law in Australia [706], [708], [710] and [713]. And see Commonwealth v McCormack (1984) 155 CLR 273.
Issues
Question 1 asks whether Ventia is entitled to restitution from Western Power, by way of contribution, recoupment or otherwise, in respect of amounts pleaded in paragraphs 10.1, 10.2 and 10.5 of the Statement of Claim. Although the question refers to 'contribution, recoupment or otherwise', Ventia claimed only a right of recoupment.[42]
[42] See Statement of Claim [20] and [23] and ts 81.
In relation to this question, the issues that arise are as follows:
1.Was the first condition to a right of recoupment met? That is, was it a liability falling on both Ventia and Western Power?
2.Was the second condition to a right of recoupment met? That is, did Ventia's Payments benefit Western Power?
3.If the answer to both questions are 'yes', is there nevertheless no right of recoupment due to the operation of s 5AL of the Civil Liability Act?
If the answer to Question 1 is 'yes', Question 2 falls to be determined. Here, the only issue is whether the right of recoupment (assuming the right was found in answer to Question 1) extends to costs incurred in defending and settling proceedings.
Facts and assumptions
The parties agreed the following facts and assumptions for the purposes of the preliminary determination of the issues.[43]
[43] Agreed Facts.
Agreed Facts
1.On 12 January 2014, the Parkerville Bushfire started when a jarrah pole (the PA Pole) supporting an electrical cable fell to the ground causing electrical arcing and igniting vegetation in Parkerville, Western Australia.
2.Parties claiming loss and damage resulting from the Parkerville Bushfire commenced proceedings in the Supreme Court of Western Australia against:
2.1Mrs Campbell, the owner of the PA Pole and the property upon which the PA Pole was situated;
2.2Western Power, the network operator which distributed electricity from its network to Mrs Campbell's property via a service cable connected to the PA Pole; and
2.3Ventia Utility Services (Thiess), a Western Power sub‑contractor engaged to undertake works in the vicinity of the PA Pole in July 2013.
3.The plaintiffs in the proceedings were:
3.1Daniel Herridge and the plaintiffs listed in schedule 1 to the Further Amended Writ of Summons (CIV 2259 of 2015) (Herridge Proceedings).
3.2Karen Patricia Adams and the plaintiffs listed in the schedule to the Writ of Summons (CIV 1239 of 2016) (Karen Adams Proceedings).
3.3Anthony Adams and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 1445 of 2016) (Anthony Adams Proceedings).
3.4Jodis Powell and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 1841 of 2016) (Powell Proceedings).
3.5Wayne Pontague and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 3168 of 2019) (Pontague Proceedings).
3.6Bradley Krepp and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 3149 of 2019) (Krepp Proceedings).
4.In July and August 2018, the Honourable Justice Le Miere tried the questions of the defendants' liability for the failure and collapse of the jarrah pole, and the subsequent fire and damage, and the individual loss claims of the nominated lead Plaintiffs, Mr and Mrs Elwood, in the following proceedings together:
4.1the Herridge Proceedings;
4.2the Karen Adams Proceedings;
4.3the Anthony Adams Proceedings; and
4.4the Powell Proceedings (Actions).
5.On 20 September 2019, Justice Le Miere made the following orders in the Actions:
5.1There be judgment for the lead Plaintiffs, Mr G Elwood and Mrs S Elwood, against Thiess in the amount of $542,313.25, together with interest of $165,048.36.
5.2There be judgment for the lead Plaintiffs, Mr G Elwood and Mrs S Elwood, against Mrs Campbell in the amount of $232,419.97, together with interest of $70,725.01.
5.3Thiess pay the non-lead Plaintiffs 70% of the actionable damages suffered by them as a result of the Parkerville Bushfire.
5.4Mrs Campbell pay the non‑lead Plaintiffs 30% of the actionable damages suffered by them as a result of the Parkerville Bushfire.
5.5The damages of the non‑lead Plaintiffs be assessed.
5.6Thiess and Mrs Campbell shall jointly and severally pay 80% of the plaintiffs' costs of the Actions to 20 September 2019.
5.7The claim against Western Power be dismissed.
6.On 22 October 2019, Justice Le Miere made orders:
6.1requiring the plaintiffs in the Actions other than the Herridge Proceedings to file and serve any amended particulars of damages, and supporting documentation, on Thiess and Mrs Campbell and otherwise confirm that the particulars of damage and supporting documentation originally provided to the defendants are still relied upon; and
6.2requiring Thiess and Mrs Campbell to file and serve schedules identifying what items of losses are disputed, the basis on which any sums are disputed, and the amounts of loss conceded.
7.On 30 April 2020, Justice Le Miere made orders for the assessment of the non‑lead Plaintiffs' damages in the Herridge Proceedings requiring:
7.1the Herridge plaintiffs to nominate:
(a)a first tranche of not more than ten (10) plaintiffs, whose claims for damages were each to be separately tried commencing in August 2020; and
(b)a second tranche of not more than twenty (20) plaintiffs, whose claims for damages were each to be separately tried commencing in November 2020;
7.2the parties to file and serve a list of expert reports upon which they propose to rely at the trial of the damages claims of each nominated plaintiff; and
7.3the experts to attend a conclave conducted by the Principal Registrar and to produce a joint expert report.
8.On 15 June 2020, Justice Le Miere made orders for the assessment of the non‑lead Plaintiffs' damages in the Herridge Proceedings requiring:
8.1the Herridge plaintiffs to nominate a third tranche of plaintiffs, whose claims for damages were each to be separately tried commencing in February 2021;
8.2the parties to file and serve a list of expert reports upon which they propose to rely at the trial of the damages claims of each nominated plaintiff; and
8.3the parties to the November 2020 and February 2021 trials to provide general discovery on oath.
9.Between August 2020 and April 2021, Thiess settled:
9.1the damages claims of the non‑lead Plaintiffs, and the costs claims of the lead and non‑lead Plaintiffs, in the Herridge Proceedings, at judicial mediation before the Honourable Justice Martin and the terms of settlement were recorded in a written agreement dated 30 November 2020, to which neither Western Power nor Mrs Campbell were a party;
9.2the damages and costs claims of the plaintiffs in the Karen Adams Proceedings and the Powell Proceedings at judicial mediation before Registrar Whitby and the terms of each settlement are recorded in a written agreement dated 20 August 2020, to which neither Western Power nor Mrs Campbell were a party;
9.3the damages and costs claims of the plaintiffs in the Anthony Adams Proceedings and the Pontague Proceedings by negotiation and the terms of each settlement were recorded in a written agreement dated 3 September 2020 and 13 April 2021, which neither Western Power nor Mrs Campbell were a party, respectively; and
9.4the damages and costs claims of the plaintiffs in the Krepp Proceedings following a Calderbank Offer (to which neither Western Power nor Mrs Campbell were a party) by letter dated 10 September 2020, and acceptance of the offer by letter dated 7 October 2020.
10.The plaintiffs in the Actions and Mrs Campbell appealed the first instance judgment of Justice Le Miere.
11.On 2 July 2021, the Court of Appeal allowed the appeal in part and varied the orders made by Justice Le Miere on 20 September 2019 by relevantly making the following orders:
11.1There be judgment for Mr G Elwood and Mrs S Elwood against Western Power in the amount of $387,366.61, together with interest of $117,891.69.
11.2There be judgment for Mr G Elwood and Mrs S Elwood against Thiess in the amount of $271,156.63, together with interest of $82,524.18.
11.3There be judgment for Mr G Elwood and Mrs S Elwood against Mrs Campbell in the amount of $116,000, together with interest of $35,361.51.
11.4Western Power pay the non‑lead Plaintiffs 50% of the actionable damages suffered by them as a result of the Parkerville Bushfire.
11.5Thiess pay the non‑lead Plaintiffs 35% of the actionable damages suffered by them as a result of the Parkerville Bushfire.
11.6Mrs Campbell pay the non‑lead Plaintiffs 15% of the actionable damages suffered by them as a result of the Parkerville Bushfire.
11.7The Defendants do jointly and severally pay the Plaintiffs' costs of the Action to 20 September 2019.
11.8The parties have liberty to apply in relation to any restitutionary orders in respect of amounts paid under orders of the primary court which have been set aside by these orders.
12.On 19 July 2023, Thiess and Mrs Campbell resolved all issues in dispute between them in the current proceedings (trial and damages assessment costs) subject to, inter alia, the determination of question 1(c).
13.Western Power appealed the judgment of the Court of Appeal.
14.Western Power made general payments to Thiess without prejudice to their detailed attribution as identified in Schedule A to the Statement of Claim on the following basis:
14.1while Western Power does not accept that it has any legal obligation to pay contribution or restitution to Thiess in respect of amounts Thiess has paid to the various plaintiff groups for damages and interest on damages under settlement agreements, subject to the Court of Appeal's orders remaining undisturbed on appeal and to Western Power obtaining an effective discharge of its obligations to the plaintiffs to pay damages and interest on damages by such reimbursement, Western Power agreed to reimburse Thiess for 50% of the amounts it paid to the various plaintiff groups for damages, plus simple interest accruing at 6% per annum from the dates that liability for damages payments accrued to those groups, and individuals in those groups;
14.2subject to the Court of Appeal's orders remaining undisturbed on appeal, Western Power accepts that once the various plaintiff groups' party‑party trial costs and damages assessment costs have been assessed or agreed (by all parties), as between the three defendants it will be liable to pay or contribute one third of those costs;
14.3the general payments have been made by Western Power, subject to a full reservation of the parties' appeal rights, in respect of the amounts Western Power has agreed to reimburse for damages and interest and those which it will in due course be liable to contribute in respect of the plaintiffs' costs so as to stop the further accrual of interest on those amounts; and
14.4Western Power does not accept liability for the disbursements incurred by Thiess in the period after September 2019 by various experts engaged in the damages assessment.
15.On 7 December 2022, the High Court dismissed Western Power's appeal.
Agreed Assumptions
16.For the purposes of the separate trial of preliminary issues, it may be assumed that Thiess made payments to:
16.1the plaintiffs as set out in Schedule A to the Statement of Claim; and
16.2experts in relation to the assessment of damages of non‑lead Plaintiffs in the Actions as set out in Schedule B to the Statement of Claim.
17.The parties further agree that the judgments of the Supreme Court, Court of Appeal and the High Court may be tendered as proof of the facts found in those reasons.
Question 1 - analysis
As noted earlier, Question 1 asks whether Ventia is entitled to recoupment from Western Power in relation to the Payments.
In essence, Ventia asserts that it paid part of Western Power's liability to the Plaintiffs. Without disrespect to the sophisticated legal analysis presented by Ventia, its contentions can be simplistically summarised as follows:
1.Following the first instance judgment in which it was found to be liable for 70% of the Action Plaintiffs' loss, Ventia paid 70% of the loss[44] of each[45] Plaintiff (including interest). It will be recalled that I refer to this money as the 'Payments'.
2.The subsequent Court of Appeal decision established that Ventia had paid more than it was liable to pay. (I will refer to the amount paid in excess of its liability as the 'Overpayments').
3.The Overpayments were payments of part of the loss for which Western Power was liable.
4.That is, Ventia inadvertently, and judged in hindsight having regard to the Court of Appeal's decision, paid part of the money owed by Western Power.
5.It did this under compulsion (due to the Primary Orders).
6.Therefore, Ventia has a right to recoup the Overpayments from Western Power, and the costs associated with them (including interest).
[44] Calculated by reference to the quantum determined by Le Miere J (in relation to the Lead Plaintiffs) or agreed between Ventia and the Settlement Plaintiffs.
[45] That is, including the plaintiffs in the Pontague Proceedings and the Krepp Proceedings.
It will be recalled that a right of recoupment will only arise if the following three conditions are met:[46]
1.the plaintiff's payment related to a liability falling upon the plaintiff and the defendant;
2.the plaintiff's payment benefited the defendant; and
3.the plaintiff was not officiously exposed to the liability.
[46] Restitution Law in Australia, [632] ‑ [636]. See also Karacominakis [239] (Giles JA, with whom Handley and Stein JJA agreed)
Western Power submits that neither of the first two requirements can be established. In broad terms, Western Power submits that:[47]
1.its liability to the Plaintiffs is a distinct and several liability and there is not a common burden of a coordinate liability; and
2.Ventia's Overpayments did not, as a matter of law, discharge any liability of Western Power to the Plaintiffs.
[47] Defence [18(a)(i)‑(ii)], Western Power's Submissions [4], [15] ‑ [16] and ts 104 ‑ 105.
Western Power notes that, on Ventia's construction, Ventia's Payments under the judgment and under settlement agreements (to which Western Power was not a party) effectively increased Western Power's liability. Western Power says that cannot be right.[48]
[48] See ts 96 ‑ 101.
As I will explain, I consider that the first and second conditions were not met.
In relation to the first condition, I accept that Ventia was practically compelled to make the Payments by the Primary Orders, at least in relation to the payments to the Lead Plaintiffs. However, I do not accept that any of what Ventia paid related to a liability that fell on Western Power.
In relation to the second condition, I do not accept that the Payments benefited Western Power. Western Power remained liable to the Plaintiffs unless it ratified the Overpayments, and there was a good reason why Western Power would not want to do that. Ratifying the Overpayments would require Western Power to pay more than if it paid the Plaintiffs directly. Given this, I consider that it cannot be said, as a matter of substance, that the Overpayments benefited Western Power.
It is convenient to begin with the second condition; whether the Payments benefited Western Power.
Did Ventia's payments benefit Western Power?
Ventia submits that Western Power obtained a practical benefit from the Payments 'based upon the unlikelihood that the plaintiff groups will sue Western Power in relation to the actionable damages'.[49] Western Power submits that this should be rejected as it is a bare assertion not proven by evidence.[50]
Ventia's submissions
[49] Ventia's Submissions [15].
[50] Western Power's Submissions [17] and ts 85 ‑ 86.
Ventia makes four points:[51]
1.First, that a formal discharge of liability is not necessary.
2.Second, that there is no evidence that Western Power has been or is likely to be sued by the Plaintiffs.
3.Third, what makes it unlikely that Western Power will be sued is that, if Western Power is sued by the Plaintiffs, Western Power could affirm the Payments and thereby obtain a discharge of liability for that amount.
4.Fourth, it can be inferred that Western Power does not realistically believe it will be sued by the Plaintiffs.
[51] ts 75 ‑ 76.
I accept the first point.
In relation to the second point, Ventia notes that the appeal to the High Court was dismissed on 7 December 2022, over a year ago.[52] However, Western Power points out that each of the Plaintiffs has already sued Western Power. In addition, the Plaintiffs have (or will have[53]) judgment against Western Power. It says that, therefore, this is not a case where the payment by one person has reduced the risk that another person is sued.
[52] Agreed Facts [15].
[53] The Plaintiffs in the Pontague Proceedings and Krepp Proceedings do not yet have judgment because those proceedings commenced after the Primary Orders were made. However, the parties have, understandably, proceeded on the basis that the same liability findings would be made in these proceeding - see ts 86.
In relation to the third point, Ventia notes[54] that the authors of Restitution Law in Australia say:[55]
If D is sued by the original creditor, D can affirm P's payment and thereby obtain a discharge of the original debt.
…
There will seldom be any good reason why D would choose not to adopt the benefit by ratifying the previously unauthorised payment, thereby becoming formally armed with a defence against being sued twice by the creditor.
[54] ts 75
[55] Restitution Law in Australia [622] and [636].
Western Power submits that, in this case, there is a very good reason why it would not affirm Ventia's Overpayments in order to obtain a discharge of its liability. It submits that, if Western Power did affirm the Overpayments, it would have to pay more to Ventia in restitution than it would have to pay the Plaintiffs if it paid them directly.
It will be recalled that the parties agree that, if Ventia is entitled to restitution from Western Power, it would be entitled to more than Damages Interest. The parties agree that Western Power would also have to pay the Restitution Interest (simple interest at 6% per annum on each outstanding sum to which Ventia is entitled as restitution from the date or dates on which Ventia's entitlement to restitution accrued until the date or dates on which each such sum is or was paid). I will assume this is correct.[56]
[56] As noted earlier, I have not considered whether it is correct. This is because, even if the parties are wrong, it would make no practical difference to the outcome. It would be a pyrrhic victory if Ventia established it was entitled to recoupment if the extent of that entitlement did not include the Restitution Interest.
On that assumption, I accept Western Power's submission. Why would it affirm Ventia's Overpayments when this would increase its liability? This is a 'good reason' not to ratify the Overpayments. As a matter of substance, ratifying the Overpayments would be detrimental to Western Power. I would not find the Overpayments to be a 'benefit'.
In relation to the fourth point, Ventia submits that the payments Western Power has already made demonstrate that Western Power does not realistically believe it will be sued by the Plaintiffs. Ventia submits that Western Power has paid around $26 million, and that it would not have done that if it believed it was at risk of being sued by the Plaintiffs. Ventia submits that '[a] $26 million payment by Western Power is not largesse. They got a benefit'.[57]
[57] ts 75 ‑ 76.
I do not accept this.
First, Western Power made the payments to Ventia expressly subject to Western Power obtaining an effective discharge of its obligations to the Plaintiffs to pay damages and interest on damages.[58]
[58] Agreed Facts [14.1].
Second, and in any event, what Western Power believed is not relevant to the analysis of whether Western Power did in fact benefit from Ventia's payments.
Western Power's submissions
Western Power submits that its obligation to pay the Lead Plaintiffs remains. It says that the Overpayments did not legally or practically discharge its liability. It submits that it follows from this that it has received no benefit from Ventia's Overpayments.
Western Power illustrated its position by reference to a hypothetical situation. The situation posited was where a Lead Plaintiff went bankrupt after receiving an Overpayment but before the Court of Appeal decision. Western Power said that, in such a scenario, Western Power could not, after the Court of Appeal finding that it was liable for 50% of the assessed damages, resist a demand from the trustee to pay that sum. Western Power submits that it could not rely on the Overpayments. It submits that the trustee would simply owe Ventia the Overpayments.[59]
[59] ts 88 ‑ 89.
Ventia submits that Western Power could ratify the Overpayment, and that this would give them a defence against the trustee.[60] I will assume it would be open to Western Power to ratify payments which were made by Ventia to discharge its own liability (not Western Power's liability) to resist a claim by the trustee. However, why would Western Power ratify the Overpayment when to do so would increase its liability? As a matter of substance, ratifying the Overpayment would not benefit Western Power. I accept Western Power's submission that the Overpayments did not legally or practically discharge its liability.
[60] ts 118.
Western Power submits that the same reasoning applies to the payments Ventia made to the Settlement Plaintiffs, who were paid following settlement agreements, without any judicial assessment of their damages and costs. In addition, Western Power submits that, at present, the Settlement Plaintiffs do not currently have an entitlement against Western Power. The Settlement Plaintiffs settled with Ventia and Mrs Campbell without establishing their damages in the proceedings. Unless or until that occurs (or is agreed with Western Power), Western Power is not required to pay anything to the Settlement Plaintiffs.[61]
[61] See ts 93 ‑ 95.
Ventia submits that a conclusion that it is not entitled to recoupment would cause significant inconvenience and would be impractical. It would be required to recover the Overpayments from the multiple individual Plaintiffs, who may raise restitutionary defences, and who could then pursue Western Power for the same amount.[62]
[62] See Ventia's Submissions [8] and ts 60 ‑ 62.
This is correct. Nevertheless, inconvenience and impracticability cannot convert an entitlement to seek restitution from a Plaintiff (or to enforce rights arising under a settlement agreement) to a right of recoupment from Western Power. If the Overpayments did not benefit Western Power, Ventia does not have a right of recoupment.
Ventia further submits that, if Western Power is correct, this would disincentivise litigants from acting in accordance with court orders and court processes for the resolution of damages assessment trials and from settling disputes.[63] Ventia submits this would be inconsistent with the 'first and highest principle that litigants should be protected from loss caused in obeying adverse judgments reversed on appeal'.[64] As I will explain, I do not accept this.
[63] See Ventia's Submissions [8] and ts 60 ‑ 62.
[64] ts 62.
As noted earlier, the Primary Orders required Ventia and Mrs Campbell to pay fixed sums to the Lead Plaintiffs. It is not disputed that the outcome of the appeal gave Ventia the right to restitution from the Lead Plaintiffs of half of what it had paid.
Western Power submits that Ventia chose to settle with the Settlement Plaintiffs in full knowledge that, if the proportion of liability was reduced on appeal, complications could arise. Western Power submits that Ventia chose to deal with the potential complications contractually, and thereby chose the risks it would take.
Annexed to these reasons are extracts from the settlement agreements and a summary of the Calderbank offer which was accepted in settlement of one of the claims. Due to the different insurers involved, there are some differences in the agreements. Ventia did not suggest that the question of whether Western Power received a benefit would turn upon any differences in the agreements.
The settlement agreements did not purport to discharge any liability of Western Power. Indeed, many of the deeds included express statements to the effect that the agreement between the Plaintiffs and Ventia reflected in the deed would not prejudice their rights to recover from Western Power.[65] In broad terms, each settlement agreement discharged Ventia's liability to the Plaintiffs, subject to any change in Ventia's liability following an appeal.[66] Each settlement agreement made provision for what would occur if Ventia's liability was reduced following an appeal. In broad terms, the agreements provided that:[67]
1.Ventia would use its best endeavours to recover the Overpayments from the other defendants; and
2.If Ventia was unable to recover the Overpayments from the other defendants, the Plaintiffs would recover from the other defendants and would then pay the Overpayments to Ventia; and
3.If Ventia was unable to recover the Overpayments from the other defendants, and the Plaintiffs were unable to recover from the other defendants, the Overpayments would not be repaid.
[65] See the Joint Book of Documentary Evidence tabs 7 and 8 recital H (and see also clause 9 - the 'sole purpose'), tab 9 recitals F and H and clause 4, tab 10 recital G and clause 3(ii).
[66] See the Joint Book of Documentary Evidence tabs 7 and 8 clauses 7 ‑ 9 and 11, tab 9 clauses 4 ‑ 5, tab 10 clauses 2 and 3, tab 19 clauses 3 and 4.
[67] See the Joint Book of Documentary Evidence tabs 7 and 8 clause 12, tab 9 clause 11, tab 10 clause 6, tab 19 clause 6.
The fact that Ventia agreed with the Settlement Plaintiffs to first try to recover its Overpayments from Western Power does not create a right of recoupment from Western Power. Again, if the Overpayments did not benefit Western Power, Ventia does not have a right of recoupment.
The acceptance of a Calderbank offer settled the Krepp proceedings. Under that agreement, the Plaintiffs said it would accept a fixed sum, which they contended was 70% (Ventia's then liability) of a significantly discounted quantum of its total damage, in discharge of Ventia's liability only.[68] Ventia accepted this offer.[69] The agreement made no provision for any repayment if Ventia's liability was reduced after the appeal. It appears that, in this case, Ventia accepted the risk that it would not be able to alter what it paid if its liability was reduced, in exchange for settling the proceedings for the discounted fixed sum proposed.
[68] Joint Book of Documentary Evidence tab 20 paragraphs 5 and 6 of the letter dated 10 September 2020.
[69] Joint Book of Documentary Evidence tab 21.
I accept Western Power's submission that Ventia chose to deal with the potential complications contractually, and thereby chose the risks it would take.
During the hearing, I asked the parties whether there was any reason why the settlement deeds could not have provided a mechanism to eliminate the inconvenient and impracticable outcome which Ventia asserts will follow if it is not able to recoup the Overpayments from Western Power. Ventia sought leave to file supplementary submissions on that question, and I gave the parties leave to do so.
In its supplementary submissions, Ventia submitted that, while a right to sue in tort may be assignable, there would be practical difficulties and legal uncertainties.[70] Western Power submitted that Ventia would not have needed to take an assignment of the Settlement Plaintiffs' rights to sue Western Power in tort. Western Power pointed out that Ventia needed only to take an assignment of the relevant portion of the proceeds of the Plaintiffs' post‑appeal judgments against Western Power, or agree terms by which the Plaintiffs would assign such proceeds to Ventia at the relevant time.[71] Ventia did not dispute that the proceeds of a cause of action may be assigned.[72]
[70] Thiess' Supplementary Submissions filed 11 December 2023.
[71] First Defendant's Supplementary Submissions filed 15 December 2023. And see clause 6(a)(ii)(B) of the agreement in tab 10 of the Joint Book of Documentary Evidence.
[72] Thiess' Supplementary Submissions [9].
I accept Western Power's submissions. In any event, as I have already noted, any practical difficulties that would follow if Ventia did not have a right to recoupment could not create a right of recoupment.
For these reasons, I consider that the Overpayments did not benefit Western Power. As a matter of substance, ratifying the Overpayments would increase Western Power's liability.
Was it a liability falling upon both?
It will be recalled that the first condition to a right of recoupment is that there was a liability falling on both. Given my conclusion in relation to the second condition, it is unnecessary to resolve whether the first condition was met. Nevertheless, I will address it in case I am wrong to have found that the second condition was not met.
In its written submissions, Western Power contended that a right of recoupment only arose in respect of common liabilities.[73] During the hearing, Western Power clarified this. Western Power contended that the right of recoupment only arises where there is a common burden of a coordinate liability.[74]
[73] Western Power's Submissions [14].
[74] ts 104 ‑ 105.
Although Ventia used the expression 'common and coordinate liability' during the hearing, it was sufficiently clear that Ventia meant a common burden and a coordinate liability. Ventia submitted that it was not necessary that there be a common burden nor a coordinate liability.[75] Ventia further submitted that, if this was wrong, then the most that was required was a common burden. Ventia said that a 'common burden is a common exposure arising in respect of the same loss such that the plaintiff groups cannot recover from both Western Power and [Ventia]'.[76] Ventia submitted that, if there was a requirement of a common burden, it was met in this case.[77]
If a common burden is required, was it met?
[75] See ts 53, 60, 66 ‑ 68, 71 and 124.
[76] ts 71.
[77] See Ventia's Submissions [11] ‑ [13] and [16] and ts 53 ‑ 78 and 124 (Ventia) and ts 105 (Western Power).
I do not accept that there was a common burden.
Ventia submits that the facts in this case are analogous to the facts in Limit (No 3) Ltd.[78] In that case, the common burden only arose after another event occurred. Despite this, Rein J found that it was just and equitable to order recoupment.[79]
[78] Limit (No 3) Ltd v Ace Insurance Ltd [2009] NSWSC 514.
[79] Limit (No 3) Ltd [315] ‑ [316]. (During the hearing, there were two versions of the decision with different numbering. The references in these reasons are to the paragraph numbers in the version appearing on the NSW Supreme Court website).
In Limit (No 3) Ltd,[80] the defendant (ACE) issued a contract works liability insurance policy to a joint venture engaged by PowerGrid in August 2001. The works included digging tunnels under an avenue in Singapore. As a result of this work, damage was caused to the property of third parties.
[80] See in particular Limit (No 3) Ltd [1] ‑ [6] and [281].
PowerGrid and the joint venture received claims from third parties. PowerGrid and the third parties sought indemnity from the joint venture. The joint venture sought indemnity from ACE.
When ACE refused to meet the claim, the first plaintiff (Limit), a Lloyds syndicate, and other Lloyds insurers (collectively 'Lloyds') became liable to indemnify the joint venture for the same risk. The joint venture sought indemnity from Lloyds.
Lloyds indemnified the joint venture and paid $13 million. Its payment removed ACE's obligation to indemnify the joint venture. Lloyds then sought recoupment, indemnity or contribution from ACE.
Justice Rein said that '[w]hen Lloyds indemnified the joint venture it removed a burden from ACE to indemnify the joint venture, pursuant to an obligation that it had only because ACE would not meet its obligation to the joint venture'.[81] His Honour concluded, in effect, that, once ACE refused to pay, the two insurers had a common burden even though they did not have a common burden until the refusal.[82]
[81] Limit (No 3) Ltd [281(5)].
[82] Limit (No 3) Ltd [315(6)].
Ventia submits that, in this case, when the Court of Appeal made its decision, there was then a common burden arising in respect of the same loss. It says this is demonstrated by the fact that the Plaintiffs could not recover against Ventia under the Primary Orders and against Western Power under the Court of Appeal orders, as this would be double recovery.[83]
[83] ts 73.
I do not accept Ventia's submissions.
First, there was never a common burden. When Ventia paid the Plaintiffs, there was no burden on Western Power. When the Court of Appeal's decision was made, there was no burden on Ventia (in relation to the proportion of liability reflected in the Overpayments).
Second, the reason why the Plaintiffs could not have recovered against Ventia under the Primary Orders and against Western Power under the Court of Appeal orders is not because it would be double recovery. It is because the Primary Orders were set aside by the Court of Appeal.
Paying the debt of another?
It is unnecessary to further address the differences between the parties as to the requirements of the first condition. This is because, despite their differences, the parties appeared to agree that the first condition would be met if a person was compelled to pay the debt of another.[84]
[84] See Ventia's Submissions [12] - [13] and ts 68 ‑ 69 (Ventia) and ts 105 (Western Power). And see Restitution Law in Australia [625] and Karacominakis v Big Country Developments Pty Ltd [239] ‑ [240] (Giles JA, with whom Handley and Stein JJA agreed).
Ventia accepts that the right of recoupment arises only where the plaintiff, being under an immediate or threatened liability, is compelled to pay the defendant's liability. It accepts that both the plaintiff and defendant must be under a liability. It disputes that those liabilities need to be common or coordinate.[85]
[85] ts 68 ‑ 69.
Ventia submits that it was compelled by the Primary Orders to pay the Plaintiffs 70% of their damages. It submits that the Court of Appeal decision meant that part of what it had paid was, in fact, part of Western Power's liability. It submits, therefore, that the first condition was met in this case.
I will first discuss the payments made to the Lead Plaintiffs.
The analysis is easier to understand if the loss is described in quantitative, but simplified, terms. To that end, I will refer to the Lead Plaintiffs' loss as being $100.
I was initially attracted to Ventia's argument. Ventia was compelled by the Primary Orders to give $70 to the Lead Plaintiffs. The Court of Appeal decision meant that Ventia was only liable for $35 and Western Power was liable for $50. Looking back, it could be said that $35 of the $70 paid by Ventia was part payment of Western Power's $50 debt.
However, I have reached the conclusion that this is not the correct characterisation.
The primary judge found that Ventia was liable for the loss of $70, and Mrs Campbell was liable for the loss of $30. Western Power was not liable for any loss. In giving the Lead Plaintiffs $70, Ventia was not paying any debt of Western Power.
By the Court of Appeal's decision, Ventia was liable for the loss of $35, Mrs Campbell was liable for the loss of $15, and Western Power was liable for the loss of $50. Although Ventia had already given the Lead Plaintiffs $70 (pursuant to the Primary Orders), Western Power was still liable to give the Lead Plaintiffs $50 (pursuant to the Court of Appeal's decision). Ventia had the right to seek restitution from the Lead Plaintiffs of $35. The principle behind the entitlement to restitution following an appeal is that the court is seeking to restore to one party what had been wrongly taken from it and given to the other.[86]
[86] Restitution Law in Australia [708].
The effect of the Court of Appeal's decision was not to convert money that Ventia had paid to discharge its own liability into money paid inadvertently (and with the benefit of hindsight) in partial discharge of Western Power's liability. The effect was to give Ventia the right to recover that which had been wrongly taken from it.
If Ventia had been the sole wrongdoer, the Overpayments could only have been characterised as a payment of more than had to be paid (due to the primary judge's mistake) in order to discharge its liability. There is no principled reason why the characterisation should be different where Ventia was not the sole wrongdoer.
This was not a case where Ventia was liable to pay Western Power's liability in relation to which, as between Ventia and Western Power, the latter was primarily liable.
This conclusion is consistent with, and supported by, the above analysis in relation to the second condition. The Overpayments did not benefit Western Power.
I consider that the same can be said in relation to the Settlement Payments. Even if Ventia could be said to have been under a 'practical compulsion' to make those payments, any restriction on Ventia's ability to seek restitution from the Settlement Plaintiffs arises from Ventia's decision to settle on the terms that it did.
Just and equitable?
Ventia noted that, in Limit (No 3) Ltd, Rein J appeared to have found a right of restitution even though the conditions to such a right did not strictly exist.[87] The finding was made on the basis that it would be a just and equitable outcome. However, Ventia did not contend I should find it had a right of restitution against Western Power if the conditions were not met. Had that contention been made, I would have rejected it. I do not accept that it would be just and equitable to order recoupment from Western Power. Such an order would make Western Power pay more than it would have had to pay if it had been found liable at first instance and paid the Plaintiffs directly. This would not be just or equitable.
Civil Liability Act
[87] ts 70 ‑ 71 and Limit (No 3) Ltd [315].
These conclusions make it unnecessary to consider whether, if there was a right of recoupment in equity, it was excluded by s 5AL of the Civil Liability Act.
Question 2 - analysis
As noted earlier, Question 2 refers to payments made to experts. Ventia claims 50% of payments it says it made to its experts in defending and settling the assessment of damages of the non‑Lead Plaintiffs in the Actions and in the resolution of the Krepp and Pontague Proceedings. Ventia submits that, if it is entitled to recoupment, it is entitled to be reimbursed for a share of the costs of its experts.
In Morgan Equipment Co v Rodgers,[88] Giles J said:
… If all sureties are benefited by discharge of the debt, they should all contribute to the burden. Discharge by successful defence of the creditor's claim on grounds which will enure to the benefit of the co‑surety is as much a discharge as payment. It is but a short step to say that costs reasonably incurred in achieving the benefit should form part of the burden, and that a co‑surety who has benefited from the discharge of the debt will be required in equity to contribute to the costs.
Consistently with the fundamental equitable principle, therefore, contribution should be available for costs reasonably incurred in the successful defence, in whole or in part, of the creditor's claim where that defence will enure to the benefit of the co-surety.
[88]Morgan Equipment Co v Rodgers (1993) 32 NSWLR 467, 482.
The same principle applies to co‑obligors. Further, if the co‑obligor settles the proceedings with the creditor, the same applies unless the co‑guarantors can prove that the settlement was improvident.[89]
[89] Harris v Miller [2013] NSWSC 1902 [58].
Ventia frankly acknowledges that there are no cases in which this principle has been said to extend to a right of recoupment. Ventia notes that Halsbury's Laws asserts that it does, albeit citing only contribution cases.[90] Ventia further notes that the reasoning in two contribution cases in which it was found that equity required that a share be paid of the costs of defending and settling proceedings involved the application of the fundamental equitable principle of benefit and burden. It says that that principle applies equally in the context of recoupment.[91]
[90] Halsbury's Laws of Australia (online) [370-1130].
[91] ts 79 ‑ 82.
Western Power simply denies it is required to reimburse Ventia for these payments.[92] Western Power does not dispute that, where a co‑surety's defence or settlement of a proceeding discharges the debt of another co‑surety, the first co‑surety is entitled to contribution from the second in relation to the debt and the first co‑surety's costs. It submits, however, that Ventia and Western Power are not 'co‑sureties' or 'co‑obligors' in relation to a solidary claim. It submits that nothing that Ventia did discharged any of Western Power's liability. For the same reasons as I gave in relation to Question 1, I agree.
[92] Defence [18(e)].
Ventia concedes that, if it is not entitled to recoupment, it is not entitled to be reimbursed. That is, Ventia concedes that if the answer to Question 1 is 'no', so too must be the answer to Question 2.[93]
[93] ts 79.
As I have answered Question 1 'no', it is therefore unnecessary to do more than record that the answer to Question 2 is also 'no'. Nevertheless, I observe that Ventia claims a right of recoupment of half of what it paid to its experts. As Western Power points out, it is difficult to understand how there could be a right of recoupment in relation to only part of a loss. If it was an expense that ought to be shared, the right to recover part of that expense would be more naturally described as a right of contribution.
Conclusion
For these reasons, I would answer 'no' to each of Question 1 and 2.
I will hear from the parties as to costs.
ANNEXURE
Settlement Agreement in Powell proceedings[94]
[94] Tab 7 of the Joint Book of Documentary Evidence. The Settlement Deed in the Karen Adams proceedings, in tab 8, was in similar terms.
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RECITALS
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EThe Second Defendant [Ventia] is desirous of taking such steps as are available to it, without prejudice to the issues of liability and apportionment pending in the appeals and cross appeals, to stop interest continuing to accrue on damages and costs and to avoid the expense and liability of a quantum trial and/or quantum trials, and has entered into this Deed to that end.
FThe Plaintiffs are desirous of receiving payment on account of the losses they have suffered from the Second Defendant as soon as possible and are willing to accommodate the desire of the Second Defendant set out in Recital E above, but only to the extent that such accommodation does not prejudice their rights in their pending appeal, the issues of liability and apportionment pending in the appeals and cross appeals.
GThe Plaintiffs and the Second Defendant are desirous of taking such steps as are available to them, without prejudice to the issues of liability and apportionment pending in the appeals and cross appeals, to agree the amount payable by the Second Defendant in relation to its liability to pay damages, interest on damages, costs and interest on costs to the Plaintiffs, and the parties have entered into this Deed to that end.
HThe Plaintiffs and the Second Defendant agree that nothing in this Deed shall prejudice the Plaintiffs' rights and/or the Second Defendant's rights to recover any losses for damages, interest, costs or otherwise, from the First Defendant.
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DEED OF AGREEMENT
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7After accounting for the Interim Payment made by the Second Defendant on 17 December 2019, the Second Defendant remains liable to pay the Plaintiffs a further $1,500,000 (Settlement Sum). The Settlement Sum, together with the Interim Payment, is in full and final satisfaction of Thiess' liability to the Plaintiffs for:
(a)Thiess' Damages Liability;
(b)Thiess' Interest Liability;
(c)Liability Costs;
(d)Interest on Liability Costs; and
(e)Quantum Costs.
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9The Plaintiffs accept the Settlement Sum from the Second Defendant for the sole purpose of resolving the Second Defendant's liability to the Plaintiffs for Thiess' Damages Liability and Thiess' Interest Liability; Liability Costs and Interest on Liability Costs; and Quantum Costs. Subject to the clauses herein in relation to the appeals, the Second Defendant is released from its liability to the Plaintiffs for Thiess' Damages Liability, Thiess' Interest Liability, Liability Costs, Interest on Liability Costs; and Quantum Costs.
10Nothing in this Deed effects the Second Defendant's entitlement to seek contribution from the Third Defendant and/or the First Defendant in relation to their respective liability in equity or otherwise to contribute to the Plaintiffs' Liability Costs and/or Quantum Costs and any interest thereon.
11The Plaintiffs and the Second Defendant expressly reserve their appeal rights with respect to the Final Orders including any subsequent or further appeals and nothing in this Deed effects the rights of the parties to appeal the Final Orders or with respect to any subsequent or further appeals.
12In the event that one or more of the appeals or cross‑appeals are successful and the outcome is that the Second Defendant's liability to the Plaintiffs is reduced, the Plaintiffs acknowledge that the Second Defendant has a right to recover such proportionate sum of the monies it has paid to the Plaintiffs as would give effect to the outcome of the appeal (Overpayment) from the liable Defendant(s), and, in relation to the Second Defendant recovering the Overpayment, the parties agree that:
(a)the Second Defendant will use its best endeavours to recover the Overpayment from the liable Defendant(s);
(b)if the Second Defendant is unable to recover the Overpayment in accordance with paragraph (a) above, the Plaintiffs will promptly make payment to the Second Defendant of the Overpayment once recovered from the liable Defendant(s);
(c)nothing within paragraph (b) hereof is to be interpreted to mean that the Plaintiffs will be liable to refund the Overpayment to the Second Defendant in the event that the Plaintiffs do not prior thereto achieve full recovery of the Overpayment as against the liable Defendant(s);
(d)save as is expressly referred to above, the Second Defendant covenants that it will not seek to recover from the Plaintiffs any monies paid to the Plaintiffs including the Interim Payment and the Settlement Sum.
Settlement Agreement in Pontague proceedings[95]
[95] Tab 19 of the Joint Book of Documentary Evidence, underlining omitted.
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Whereas
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E.The settlement sum payable to the Plaintiffs represents the same proportion of loss (70%) payable by Ventia in the Parkerville bushfire litigation in respect of property damage claims. The Appeals brought by the parties in the Parkerville bushfire litigation relevant to this settlement are as set out below.
Now this agreement witnesses
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3.Upon making of the payment set out in paragraph 1 above the Plaintiffs shall discontinue the Proceedings against Ventia on a date to be agreed between the Plaintiffs and Ventia in light of paragraph 5 below.
4.This Agreement releases Ventia from all and any loss of the Plaintiffs arising out of or in any way connected with the Parkerville bushfire.
5.Nothing in this Agreement effects Ventia's entitlement to seek contribution from the Defendants in this proceeding in relation to their respective liability in equity or otherwise to contribute to the settlement sum.
6.In the event that any appeal in the Parkerville bushfire litigation is successful and the outcome is that Ventia's liability is reduced to below 70% of the value of property damage claims, it is acknowledged that Ventia has the right to recover such proportionate sum of the monies it has paid as the settlement sum as would give effect to the outcome of the appeal (Overpayment) from the other defendants in this proceeding. In relation to Ventia recovering the Overpayment, the parties agree that:
a)Ventia will use its best endeavours to recover the Overpayment from the liable Defendant/s;
b)if Ventia is unable to recover the Overpayment in accordance with paragraph (a) above, the Plaintiffs will only make payment to Ventia of the Overpayment once recovered from the other Defendants;
c)nothing in paragraph (b) is to be interpreted to mean that the Plaintiffs will be liable to refund the Overpayment to Ventia in the event that the Plaintiffs do not prior there to achieve full recovery of the Overpayment as against the liable Defendants; and
d)save as expressly referred to above, Ventia covenants that it will not seek to recover from the Plaintiffs any monies paid to the Plaintiffs including the settlement sum.
Settlement Agreement in Anthony Adams proceedings[96]
[96] Tab 9 of the Joint Book of Documentary Evidence.
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RECITALS
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EThe Second Defendant [Ventia] is desirous of taking such steps as are available to it, without prejudice to the issues of liability and apportionment pending in the appeals and cross appeals including costs of the appeal, to stop interest continuing to accrue on liability to pay damages (as to 70% of the actionable damages of the Plaintiffs) and to avoid the expense of a quantum trial, and has entered into this settlement to that end.
FThe Plaintiffs are willing to accommodate the desire of the Second Defendant set out in Recital E above, but only to the extent that such accommodation does not prejudice their rights in their pending appeal, nor the issues of liability and apportionment pending in the appeals and cross appeals, nor their rights to recover further damages and interest against the Second Defendant should it be adjudged on any appeal that the Second Defendant is liable to the Plaintiffs for more than 70% of the actionable damages suffered by the Plaintiffs as a result of the Parkerville bushfire, nor their rights in relation to damages and interest as against the First Defendant and Third Defendant, nor their rights to recover costs (in the original proceedings and in any appeal) and interest on costs.
GThe Plaintiffs and the Second Defendant are desirous of taking such steps as are available to them, without prejudice to the issues identified above, to agree the amount payable by the Second Defendant in with respect to the Second Defendant's liability to pay 70% of the Plaintiffs' actionable damages and interest thereon and each party has entered into this settlement to that end.
HThe Plaintiffs and the Second Defendant intend that nothing in this settlement shall prejudice the Plaintiffs' rights to recover any losses for damages, interest or otherwise, from the Third Defendant and/or from the First Defendant.
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TERMS OF SETTLEMENT
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4.Upon payment in full to the Plaintiffs of the amount in paragraph 1 above, interest on the principal sum stated above will cease to accrue and the Second Defendant shall be released from any further liability to make payment of the Second Defendant's 70% liability for actionable damages in the Proceeding. The release is not intended to operate as a release of any liability of the First Defendant or the Third Defendant, nor as a release of any further liability (beyond 70% liability) that the Second Defendant might be adjudged (on appeal) to have to the Plaintiffs, and is not intended to prevent or preclude the enforcement of this settlement agreement.
5.The Plaintiffs accept from the Second Defendant the principal sum of $2,325,224.20 in settlement of the Second Defendant's 70% liability for actionable damages for the sole purpose of this settlement. For the avoidance of doubt, the Plaintiffs do not accept that 70% of their actionable damages in the Proceeding is $2,325,224.20 for any purpose other than entering into this settlement with the Second Defendant. The Plaintiffs are in no way precluded from recovering the balance of their full actionable damages (as well as interest and costs) from the Third or First Defendants in a quantum trial or otherwise. Should it be adjudged on any appeal that Second Defendant is liable to the Plaintiffs for more than 70% of the actionable damages suffered by the Plaintiffs as a result of the Parkerville bushfire the Plaintiffs' right to claim the additional damages, additional interest and costs from the Second Defendant are preserved. The assessment of the additional liability will not be affected by the quantification of the 70% liability provided for by this agreement.
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11.In the event that the Second Defendant or the Plaintiffs succeed in any of the appeals and the outcome of such appeal is that the Second Defendant's liability to the Plaintiffs is reduced, the Plaintiffs acknowledge that the Second Defendant has a right (without prejudice to any rights of the Plaintiffs under or arising from any further appeal) to recover such proportionate sum of the monies it has paid to the Plaintiffs as would give effect to the outcome of the appeal ('overpayment') and, in relation to the Second Defendant recovering the overpayment, the parties agree (as between the Second Defendant and each Plaintiff severally in respect of the proportionate sum allocated to him or her in the Schedule) that:
(a)The Second Defendant will first use its best endeavours to recover the overpayment as against the liable defendant(s); and
(b)if the Second Defendant is unable to recover the overpayment in accordance with paragraph (a) above, the Plaintiff will:
(i)take all reasonable steps to enter into an agreement with the liable defendant(s) so that the liable defendant(s) is to make payment to the Second Defendant of the overpayment; or
(ii)if the Plaintiff is unable to reach an agreement with the liable defendant(s) in accordance with (i) above, promptly make payment to the Second Defendant of the overpayment.
Nothing in this clause precludes any right of the Second Defendant to claim interest on any overpayment.
Settlement Agreement in Herridge proceedings[97]
[97] Tab 10 of the Joint Book of Documentary Evidence.
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RECITALS
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GThe Pending Plaintiffs wish to receive payment from Thiess in respect of the claims for economic loss or property damage they have suffered (but not including any economic loss claim arising out of personal injury) as soon as possible and are willing to accommodate Thiess's objective set out in Recital F above, but only to the extent that such accommodation does not prejudice any of their rights to pursue, establish or recover from Thiess, WP or Mrs Campbell in respect of the issues of liability and apportionment now pending in the Appeals, including any rights to make further recovery from those parties.
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TERMS OF SETTLEMENT
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3.The parties acknowledge and agree that the Settlement Sum:
(i)excludes and is entirely without prejudice to the rights of any Plaintiff in respect of personal injuries (including costs of personal injury claims) (together PI claims), which PI claims are wholly excluded from and not affected by this agreement;
(ii)excludes and is entirely without prejudice to the rights of any Plaintiff to recover further sums from Thiess, WP or Mrs Campbell in respect of:
(A)losses or damages (including, for the avoidance of doubt, further recovery of losses or damages from Thiess to the extent that Thiess's share is increased); or
(B)costs (including WP claim costs)
as a consequence of the outcome of Appeals;
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6.In the event that the effect of Ultimate Orders is that Thiess's liability is an apportionable liability and is for a proportionate share below 70% (the extent of such reduction being the Recourse Percentage), the Pending Plaintiffs acknowledge and agree that Thiess has a right to recover from each Pending Plaintiff the Recourse Percentage of any Settlement Sum received by that Plaintiff, provided that:
(a)if and to the extent that the Recourse Percentage is allocated to WP:
(i)Thiess will first use its best endeavours to recover the said Recourse Percentage from WP, to the extent available under the Ultimate Orders; and
(ii)if Thiess is unable to recover the Recourse Percentage in accordance with paragraph (a) above within a reasonable time:
(A)the Pending Plaintiffs will take all reasonable steps to enter into an agreement with WP so that WP shall make payment to Thiess of the Recourse Percentage of the Settlement Sum otherwise payable to each Pending Plaintiff;
(B)the Pending Plaintiffs will give Thiess all and any assistance be required by Thiess at its expense to assist Thiess recover any Recourse Percentage from WP including such authority to exercise rights or such assignment of rights as may be necessary or convenient to give effect to this clause;
(C)if the Pending Plaintiffs are unable to reach an agreement with WP in accordance with (A) above, then after all Pending Plaintiffs have actually recovered damages and interest from WP under the Ultimate Orders (WP recovery) (which WP recovery must be kept in Slater & Gordon's trust account until the Pending Plaintiffs' obligations under these terms of settlement are discharged, and the Pending Plaintiffs hereby irrevocably direct their solicitors to so hold the said recoveries), the Pending Plaintiffs will promptly cause Slater & Gordon to make payment to Thiess of the Recourse Percentage of the Settlement Amount otherwise payable to each Pending Plaintiff (and for the avoidance of doubt, such payment will be made in priority to any distribution to the Pending Plaintiffs); and
(b)if and to the extent that the Recourse Percentage is allocated to Mrs Campbell (Campbell reallocation):
(i)the Pending Plaintiffs hereby covenant to pay the Campbell reallocation to Thiess from the WP recovery, and clause 6(a)(ii) shall apply to such obligation with all necessary modifications; and
(ii)Thiess shall not otherwise have any right or claim against any Pending Plaintiff in respect of the Recourse Percentage.
Settlement in Krepp proceedings[98]
[98] Tabs 20 ‑ 21 of the Joint Book of Documentary Evidence.
The settlement in the Krepp proceedings occurred by Ventia's acceptance of a Calderbank offer by the Krepp plaintiffs to accept a sum from Ventia 'in full and final settlement of [Ventia's] liability for damages and interest'.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Judge
15 JANUARY 2024
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