Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58

Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58

CTC's Notice of Contention failed because cl 14.3 of the Mortgage Origination Deed required CTC to indemnify Perpetual for the full amount of loss arising from CTC's breach of warranties or obligations. That express contractual provision was inconsistent with the proportionate liability regime in Part 4 of the Civil Liability Act 2002. By s 3A(2), Part 4 did not limit or affect the parties' express contractual rights and liabilities, so CTC could not rely on s 35 to apportion its liability.

Jurisdiction
Australia
Judgment Date
20 March 2013
Procedural Posture
Civil Appeal / Post Judgment Notice of Motion and Notice of Contention
Outcome
CTC's Notice of Contention was dismissed, CTC was ordered to pay Perpetual's costs of CTC's Notice of Motion filed on 24 August 2012, and the orders made on 13 August 2012 were confirmed.
Legal Topics
['proportionate Liability' 'apportionable Claims' 'contractual Indemnity' 'concurrent Wrongdoers' 'mortgage Origination Deed' 'costs']
['civil Liability' 'contract Law' 'civil Procedure'] ['proportionate Liability' 'apportionable Claims' 'contractual Indemnity' 'concurrent Wrongdoers' 'mortgage Origination Deed' 'costs']

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Procedural Posture

Civil Appeal / Post Judgment Notice of Motion and Notice of Contention

Legal Issues

  1. 1 ["Whether the Mortgage Origination Deed made express provision for the parties' rights and liabilities inconsistent with Part 4 of the Civil Liability Act 2002." "Whether Perpetual's claim for contractual indemnity was an action for damages within s 34(1) of the Civil Liability Act 2002." "Whether Perpetual's action arose from a failure to take reasonable care within s 34(1) of the Civil Liability Act 2002." 'Whether CTC and the alleged concurrent wrongdoers caused the same loss.' 'Whether the alleged concurrent wrongdoers were liable to Perpetual in respect of the claimed loss.' 'Whether CTC should pay the costs of its Notice of Motion and the Notice of Contention.']

Ratio Decidendi

CTC's Notice of Contention failed because cl 14.3 of the Mortgage Origination Deed required CTC to indemnify Perpetual for the full amount of loss arising from CTC's breach of warranties or obligations. That express contractual provision was inconsistent with the proportionate liability regime in Part 4 of the Civil Liability Act 2002. By s 3A(2), Part 4 did not limit or affect the parties' express contractual rights and liabilities, so CTC could not rely on s 35 to apportion its liability.

Court Disposition

CTC's Notice of Contention was dismissed, CTC was ordered to pay Perpetual's costs of CTC's Notice of Motion filed on 24 August 2012, and the orders made on 13 August 2012 were confirmed.

Orders

  • ["The Court notes that it is appropriate for it to deal with CTC's Notice of Contention." "CTC's Notice of Contention is dismissed." "CTC is to pay Perpetual's costs of CTC's Notice of Motion filed on 24 August 2012." 'The orders made on 13 August 2012 are confirmed.']