Safwat Beshara v Australian Postal Corporation; Australian Postal Corporation v Swan Services Pty Ltd; Swan Services Pty Ltd v The Underwriter Insurance Company Pty Ltd; Australian Postal Corporation v The Underwriter Insurance Company Pty Ltd (No 3) [2008] NSWDC 73

Safwat Beshara v Australian Postal Corporation; Australian Postal Corporation v Swan Services Pty Ltd; Swan Services Pty Ltd v The Underwriter Insurance Company Pty Ltd; Australian Postal Corporation v The Underwriter Insurance Company Pty Ltd (No 3) [2008] NSWDC 73

The indemnity clause did not apply as no negligence by Services or its agents was found, and Australia Post was not liable to the plaintiff. The insurance policy's exclusion for contractual liability applied, precluding coverage for Services' claims for costs. Costs followed the event, with additional apportionment reflecting the reasonableness of parties' actions until employer identity was clarified.

Parties
Plaintiff: Safwat Beshara; Defendant/cross Claimant: Australian Postal Corporation; Cross Defendant/cross Claimant: Swan Services Pty Ltd; Cross Defendant: The Underwriter Insurance Company Pty Ltd
Jurisdiction
Australia
Judgment Date
14 May 2008
Procedural Posture
Civil / Judgment on Costs and Related Issues After Dismissal of Primary and Cross Claims
Outcome
Cross-claims dismissed; costs orders made as detailed.
Legal Topics
Costs, Cross Claims, Indemnity, Insurance Policy Exclusions, Occupier's Liability
Civil Procedure Insurance Law Tort Law Costs Cross Claims Indemnity Insurance Policy Exclusions Occupier's Liability

Case Brief

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Parties

Safwat Beshara

Plaintiff

Australian Postal Corporation

Defendant/cross Claimant

Swan Services Pty Ltd

Cross Defendant/cross Claimant

The Underwriter Insurance Company Pty Ltd

Cross Defendant

Procedural Posture

Civil / Judgment on Costs and Related Issues After Dismissal of Primary and Cross Claims

Legal Issues

  1. 1 Entitlement to costs following dismissal of claims and cross-claims
  2. 2 Interpretation and application of indemnity clauses in commercial contracts
  3. 3 Scope of insurance coverage and application of contractual exclusions

Ratio Decidendi

The indemnity clause did not apply as no negligence by Services or its agents was found, and Australia Post was not liable to the plaintiff. The insurance policy's exclusion for contractual liability applied, precluding coverage for Services' claims for costs. Costs followed the event, with additional apportionment reflecting the reasonableness of parties' actions until employer identity was clarified.

Court Disposition

Cross-claims dismissed; costs orders made as detailed.

Orders

  • Dismiss cross-claim by Australia Post against Services.
  • Australia Post to pay Services' costs of the first cross-claim.