CSR Limited v Amaca Pty Limited [2008] NSWCA 329

CSR Limited v Amaca Pty Limited [2008] NSWCA 329

Although Div 6, cl 4 of the Deed of Partnership would, subject to cl 8, indemnify Amaca for proceedings and costs arising from James Hardie's acts as managing agent even where exposure also occurred outside the partnership period, cl 8 of the Deed of Dissolution terminated and released the right to indemnity, including past, present and future claims under Div 6, cl 4. Amaca's indemnity claim therefore failed and the appeals were allowed.

Jurisdiction
Australia
Judgment Date
03 December 2008
Procedural Posture
Appeal From the Dust Diseases Tribunal of New South Wales / Appeal on a Question of Law
Outcome
Appeals allowed.
Legal Topics
['construction of Partnership Agreement' 'construction of Deed of Dissolution' 'contractual Indemnity' 'release of Claims' 'causation in Dust Disease Claims' 'dust Diseases Tribunal Jurisdiction' 'cross Claims for Contribution']
['partnership' 'contract' 'dust Diseases' 'civil Procedure'] ['construction of Partnership Agreement' 'construction of Deed of Dissolution' 'contractual Indemnity' 'release of Claims' 'causation in Dust Disease Claims' 'dust Diseases Tribunal Jurisdiction' 'cross Claims for Contribution']

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Procedural Posture

Appeal From the Dust Diseases Tribunal of New South Wales / Appeal on a Question of Law

Legal Issues

  1. 1 ['Whether Div 6, cl 4 of the Deed of Partnership applied where asbestos exposure commenced before the partnership, continued during it and occurred after dissolution.' 'Whether cl 8 of the Deed of Dissolution precluded any indemnity otherwise available under Div 6, cl 4.' 'Whether Amaca owed CSR a continuing duty of a fiduciary nature or duty of good faith requiring consultation about the litigation.' 'Whether the Dust Diseases Tribunal had jurisdiction to determine the cross-claims where it had not been established that Mr McDonald suffered from an asbestos-caused disease.']

Ratio Decidendi

Although Div 6, cl 4 of the Deed of Partnership would, subject to cl 8, indemnify Amaca for proceedings and costs arising from James Hardie's acts as managing agent even where exposure also occurred outside the partnership period, cl 8 of the Deed of Dissolution terminated and released the right to indemnity, including past, present and future claims under Div 6, cl 4. Amaca's indemnity claim therefore failed and the appeals were allowed.

Court Disposition

Appeals allowed.

Orders

  • ['CA 40832/07: Appeal allowed.' "CA 40832/07: Judgment and orders of O'Meally P in the Dust Diseases Tribunal made 14 September 2007 set aside." 'CA 40832/07: Judgment for the appellant, CSR Limited, against the respondent, Amaca Pty Limited, on the cross-claim.' "CA 40832/07: The respondent is to pay the...