(Re Zunic) BHP Billiton v Commonwealth of Australia [2007] NSWDDT 34

(Re Zunic) BHP Billiton v Commonwealth of Australia [2007] NSWDDT 34

Leave is granted for the Commonwealth to file a cross-claim against BHP as questions of substance regarding indemnity and limitation are best determined at trial rather than on interlocutory application.

Parties
Cross Claimant: BHP Billiton Ltd (Formerly The Broken Hill Proprietary Company Limited t/as The Whyalla Ship Building and Engineering Works); Cross Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
10 December 2007
Procedural Posture
Application to Issue Cross Claim Out of Time / Ruling on Interlocutory Application
Outcome
Application granted
Legal Topics
Contribution Between Tortfeasors, Indemnity, Implied Contractual Duty of Care, Limitation Periods
Tort Law Contract Law Statutory Liability Contribution Between Tortfeasors Indemnity Implied Contractual Duty of Care Limitation Periods

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Parties

BHP Billiton Ltd (Formerly The Broken Hill Proprietary Company Limited t/as The Whyalla Ship Building and Engineering Works)

Cross Claimant

Commonwealth of Australia

Cross Defendant

Procedural Posture

Application to Issue Cross Claim Out of Time / Ruling on Interlocutory Application

Legal Issues

  1. 1 Whether the Commonwealth can issue a cross-claim out of time
  2. 2 Whether implied terms in ship building contracts entitle the Commonwealth to indemnity from BHP
  3. 3 Whether breach of contractual duty gives rise to a right of indemnity

Ratio Decidendi

Leave is granted for the Commonwealth to file a cross-claim against BHP as questions of substance regarding indemnity and limitation are best determined at trial rather than on interlocutory application.

Court Disposition

Application granted

Orders

  • First cross-defendant (Commonwealth) has leave to file a cross-claim against the first cross-claimant (BHP) to the third cross-claim in the form annexed to the affidavit of Mark Ferdinand Treffers sworn on 24 October 2007.
  • The Commonwealth should pay BHP's costs of this application as agreed or assessed.