Macmahon Mining Services v Cobar Management [2014] NSWSC 731

Macmahon Mining Services v Cobar Management [2014] NSWSC 731

The claims targeted by Macmahon were not so plainly within the contractual definition of Consequential Loss that they could be summarily dismissed or struck out on the pleadings. Determining whether the losses were special, indirect, or within the specific excluded heads required consideration of the contract and the facts to be proved and found. The indemnity claim added no separate issue because it went no further than the pleaded breach claims. The motion for summary dismissal or strike-out was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
30 May 2014
Procedural Posture
Application for Summary Judgment or Strike Out in the Equity Division Technology and Construction List / Notice of Motion Filed on 19 March 2014 Concerning Claims in the Cross Claim List Statement
Outcome
Application for summary judgment or strike-out dismissed with costs.
Legal Topics
['summary Judgment' 'strike Out' 'contractual Exclusion of Consequential Loss' 'construction of Contract' 'direct and Indirect Loss' 'contractual Indemnity' 'costs Follow the Event']
['procedure' 'contract Law' 'construction Law' 'damages' 'costs'] ['summary Judgment' 'strike Out' 'contractual Exclusion of Consequential Loss' 'construction of Contract' 'direct and Indirect Loss' 'contractual Indemnity' 'costs Follow the Event']

Case Brief

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Procedural Posture

Application for Summary Judgment or Strike Out in the Equity Division Technology and Construction List / Notice of Motion Filed on 19 March 2014 Concerning Claims in the Cross Claim List Statement

Legal Issues

  1. 1 ["Whether Cobar's claims arising from the Upper Shaft Activities, Blind Sink operations and the Kibble Incident were claims for Consequential Loss excluded by cl 18.5 of the contract." 'Whether the Court could determine on the pleadings, without investigation of facts, that the impugned claims were excluded by cl 18.5.' "Whether Cobar's contractual indemnity claim required separate consideration from the pleaded breach claims." 'What costs order should be made on the motion.']

Ratio Decidendi

The claims targeted by Macmahon were not so plainly within the contractual definition of Consequential Loss that they could be summarily dismissed or struck out on the pleadings. Determining whether the losses were special, indirect, or within the specific excluded heads required consideration of the contract and the facts to be proved and found. The indemnity claim added no separate issue because it went no further than the pleaded breach claims. The motion for summary dismissal or strike-out was therefore dismissed with costs.

Court Disposition

Application for summary judgment or strike-out dismissed with costs.

Orders

  • ['The motion filed on 19 March 2014 be dismissed with costs.' 'The motion of 3 March 2014 be adjourned to the motions list on 11 July 2014.' 'The matter be listed for directions on 11 July 2014.' 'The exhibits be handed out.']