(Re Verschuren) Amaca Pty Ltd v M & S Whelan Investments Pty Ltd [2010] NSWDDT 5

(Re Verschuren) Amaca Pty Ltd v M & S Whelan Investments Pty Ltd [2010] NSWDDT 5

The evidence established, on the balance of probabilities, that when the plaintiff worked at the Man Lodge in Falls Creek her employer was Haita Pty Ltd, not Whelan; therefore, Whelan was not liable to Amaca for contribution, and the contribution determination and resulting judgment should be varied accordingly.

Parties
Respondent Cross Claimant: Amaca Pty Ltd; Applicant Cross Defendant: M & S Whelan Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
26 March 2010
Procedural Posture
Cross Claim / Post Judgment Application to Vary Contribution Determination and Set Aside Judgment
Outcome
Application granted; contribution determination varied and judgment set aside.
Legal Topics
Apportionment of Liability, Contribution Between Defendants, Setting Aside Judgment, Dust Diseases, Asbestos Exposure
Tort Law Employment Law Civil Procedure Apportionment of Liability Contribution Between Defendants Setting Aside Judgment Dust Diseases Asbestos Exposure

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Parties

Amaca Pty Ltd

Respondent Cross Claimant

M & S Whelan Investments Pty Ltd

Applicant Cross Defendant

Procedural Posture

Cross Claim / Post Judgment Application to Vary Contribution Determination and Set Aside Judgment

Legal Issues

  1. 1 Whether Whelan was the plaintiff's employer at the Man Lodge at Falls Creek
  2. 2 Whether Whelan should be liable to contribute to Amaca under the contribution determination
  3. 3 Whether the judgment of 14 December 2009 against Whelan should be set aside

Ratio Decidendi

The evidence established, on the balance of probabilities, that when the plaintiff worked at the Man Lodge in Falls Creek her employer was Haita Pty Ltd, not Whelan; therefore, Whelan was not liable to Amaca for contribution, and the contribution determination and resulting judgment should be varied accordingly.

Court Disposition

Application granted; contribution determination varied and judgment set aside.

Orders

  • The contribution assessment of 13 October 2009 is varied by reducing the contribution of the cross-defendant to nil.
  • Judgment entered against the cross-defendant on 14 December 2009 is set aside.