Dymocks v Capral [2010] NSWSC 195

Dymocks v Capral [2010] NSWSC 195

Because Part 4 of the Civil Liability Act 2002 (NSW) apportions liability so that any judgment against the architect on the plaintiff's apportionable claim would represent only the architect's own proportionate responsibility, the architect could not maintain a cross-claim for contribution or indemnity against another concurrent wrongdoer in respect of that apportionable claim. The original and first amended cross-claims were therefore defective and warranted dismissal, but a limited cross-claim confined to the plaintiff's non-apportionable Trade Practices Act claim could proceed. The engineer succeeded in substance on its motion and was entitled to its costs from the architect, not the...

Jurisdiction
Australia
Judgment Date
11 March 2010
Procedural Posture
Building and Engineering Contracts Damages Claim With Cross Claim for Contribution or Indemnity / Procedural Ruling on Second Cross Defendant's Notice of Motion to Dismiss Cross Claim, Leave to Amend, and Costs
Outcome
Original cross-claim not maintainable; leave granted for a limited amended cross-claim; second cross-defendant awarded costs against the cross-claimant; proceedings stood over.
Legal Topics
['apportionable Claims' 'concurrent Wrongdoers' 'cross Claims for Contribution or Indemnity' 'summary Dismissal' 'leave to Amend' 'costs']
['building and Construction' 'civil Procedure' 'civil Liability' 'contribution and Indemnity' 'trade Practices'] ['apportionable Claims' 'concurrent Wrongdoers' 'cross Claims for Contribution or Indemnity' 'summary Dismissal' 'leave to Amend' 'costs']

Case Brief

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Procedural Posture

Building and Engineering Contracts Damages Claim With Cross Claim for Contribution or Indemnity / Procedural Ruling on Second Cross Defendant's Notice of Motion to Dismiss Cross Claim, Leave to Amend, and Costs

Legal Issues

  1. 1 ["Whether the plaintiff's claim against the second defendant was an apportionable claim under Part 4 of the Civil Liability Act 2002 (NSW)." "Whether s 36 of the Civil Liability Act 2002 (NSW) barred the second defendant's cross-claim for contribution or indemnity against the second cross-defendant." 'Whether a concurrent wrongdoer against whom judgment is given in respect of an apportionable claim is entitled to contribution or indemnity from another concurrent wrongdoer.' "Whether the second defendant's limited cross-claim in respect of the plaintiff's Trade Practices Act 1974 (Cth) claim should proceed." "Who should bear the costs of the second cross-defendant's notice of motion and the cross-claimant's notice of motion."]

Ratio Decidendi

Because Part 4 of the Civil Liability Act 2002 (NSW) apportions liability so that any judgment against the architect on the plaintiff's apportionable claim would represent only the architect's own proportionate responsibility, the architect could not maintain a cross-claim for contribution or indemnity against another concurrent wrongdoer in respect of that apportionable claim. The original and first amended cross-claims were therefore defective and warranted dismissal, but a limited cross-claim confined to the plaintiff's non-apportionable Trade Practices Act claim could proceed. The engineer succeeded in substance on its motion and was entitled to its costs from the architect, not the...

Court Disposition

Original cross-claim not maintainable; leave granted for a limited amended cross-claim; second cross-defendant awarded costs against the cross-claimant; proceedings stood over.

Orders

  • ['Leave granted to amend the first cross-claim.' 'Reserve to the trial judge the question of when the amendments made to the first cross-claim should take effect.' "The cross-claimant is to pay the second cross-defendant's costs of that cross-defendant's notice of motion filed on 9 December 2009." 'Stand the...