Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196

Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196

The Bhides breached their duty of care by failing to act on recurring structural concerns and not barring access to the balcony pending expert investigation and remediation; Ms Gillies breached her duty by allowing access despite knowledge of risks. Civil Liability Act 2002 (NSW) s 5B and s 5D applied to determine breach and causation. The Bhides are entitled to contractual indemnity from Elders, but the indemnity is reduced by 30% for their contributory negligence. Elders cannot claim contribution from the Bhides where indemnity applies. Ms Gillies is liable to contribute 20% to Elders' liability to plaintiffs.

Jurisdiction
Australia
Judgment Date
04 August 2017
Procedural Posture
Appeal / Liability Determination; Orders for Parties to Bring in Short Minutes
Outcome
Appeal allowed; leave to appeal granted.
Legal Topics
['negligence' "occupier's Liability" "landlord's Duty of Care" 'contractual Indemnity' 'contributory Negligence' 'joint Tortfeasor Contribution']
['tort Law' 'contract Law' 'property Law'] ['negligence' "occupier's Liability" "landlord's Duty of Care" 'contractual Indemnity' 'contributory Negligence' 'joint Tortfeasor Contribution']

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Procedural Posture

Appeal / Liability Determination; Orders for Parties to Bring in Short Minutes

Legal Issues

  1. 1 ['Did the Bhides breach their duty of care to tenants and visitors?' 'Did Ms Gillies breach her duty as occupier to other entrants?' 'Did the primary judge err in not applying Civil Liability Act 2002 (NSW) s 5B principles for negligence?' 'Are the Bhides entitled to contractual indemnity from Elders for liabilities arising?' 'Is Elders entitled to contribution from the Bhides or Ms Gillies under Law Reform (Miscellaneous Provisions) Act 1946 (NSW)?' 'Should any contractual indemnity to the Bhides be reduced for contributory negligence?']

Ratio Decidendi

The Bhides breached their duty of care by failing to act on recurring structural concerns and not barring access to the balcony pending expert investigation and remediation; Ms Gillies breached her duty by allowing access despite knowledge of risks. Civil Liability Act 2002 (NSW) s 5B and s 5D applied to determine breach and causation. The Bhides are entitled to contractual indemnity from Elders, but the indemnity is reduced by 30% for their contributory negligence. Elders cannot claim contribution from the Bhides where indemnity applies. Ms Gillies is liable to contribute 20% to Elders' liability to plaintiffs.

Court Disposition

Appeal allowed; leave to appeal granted.

Orders

  • ['Parties directed to bring in short minutes of order reflecting reasons within 14 days.' 'Bhides found liable in tort to plaintiffs and Ms Gillies, entitled to contractual indemnity from Elders subject to 30% reduction for contributory negligence.' "Ms Gillies liable to contribute 20% to Elders' liability in...