Clutha v Millar (No.4) [2002] NSWSC 703

Clutha v Millar (No.4) [2002] NSWSC 703

Once a defendant is found, through summary dismissal on limitation grounds, not liable to the plaintiff, concurrent alleged tortfeasors cannot claim contribution against that defendant under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), and there is no basis to defer entry of judgment for the successful defendant to facilitate a contribution claim.

Parties
Plaintiff: Clutha Ltd (in liq); Defendant: Frederick William Millar; Defendant: John McClelland Armstrong; Defendant: Denis John Frew; Defendant: John Knox Doherty; Defendant: Charles Ronald Longworth; Defendant: Donald George Thomas; Defendant: Ernest Neil Scott; Defendant: Hiroshi Yoshikawa; Defendant: Hirosuke Yamamoto; Defendant: Nichimen Corporation; Defendant: Nichimen Australia Ltd
Jurisdiction
Australia
Judgment Date
12 August 2002
Procedural Posture
Summary Dismissal Application (equity) / Post Judgment on Application for Summary Dismissal Prior to Entry of Judgment
Outcome
Entry of judgment for first seven defendants not to be deferred; summary dismissal of the proceedings against the first to seventh defendants.
Legal Topics
Contribution Between Tortfeasors, Limitation Periods, Summary Dismissal, Company Insolvency, Vicarious Liability
Torts Civil Procedure Limitation of Actions Director's Duties Contribution Between Tortfeasors Limitation Periods Summary Dismissal Company Insolvency +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Clutha Ltd (in liq)

Plaintiff

Frederick William Millar

Defendant

John McClelland Armstrong

Defendant

Denis John Frew

Defendant

John Knox Doherty

Defendant

Charles Ronald Longworth

Defendant

Donald George Thomas

Defendant

Ernest Neil Scott

Defendant

Hiroshi Yoshikawa

Defendant

Hirosuke Yamamoto

Defendant

Nichimen Corporation

Defendant

Nichimen Australia Ltd

Defendant

Procedural Posture

Summary Dismissal Application (equity) / Post Judgment on Application for Summary Dismissal Prior to Entry of Judgment

Legal Issues

  1. 1 Whether a decision that a plaintiff's action against one alleged tortfeasor is summarily dismissed as time-barred precludes a claim for contribution by a concurrent alleged tortfeasor under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
  2. 2 Whether entry of judgment in favour of the first alleged tortfeasor should be deferred to permit an application by another defendant for summary dismissal or stay to be determined.

Ratio Decidendi

Once a defendant is found, through summary dismissal on limitation grounds, not liable to the plaintiff, concurrent alleged tortfeasors cannot claim contribution against that defendant under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), and there is no basis to defer entry of judgment for the successful defendant to facilitate a contribution claim.

Court Disposition

Entry of judgment for first seven defendants not to be deferred; summary dismissal of the proceedings against the first to seventh defendants.

Orders

  • Summary dismissal of the proceeding against the first to seventh defendants.