Owners SP 62930 v Kell & Rigby [2009] NSWSC 1342

Owners SP 62930 v Kell & Rigby [2009] NSWSC 1342

Clause 4.3 of the ACEA Guideline Terms of Agreement, in its natural and ordinary meaning and by reference to the structure of Part 4 of the contract, operates to exclude all liability in respect of the Services (including for statutory misleading or deceptive conduct) after the specified time period, except to the extent such exclusion is prohibited by law. Therefore, the third cross-claim is not maintainable, and judgment should be given for the cross-defendant.

Parties
Plaintiff: The Owners Strata Plan 62930; First Defendant: Kell & Rigby Pty Limited; Third Cross Claimant: Margaret Ann Waterhouse; Cross Defendant to Third Cross Claimant: George Floth Pty Ltd; Third Cross Defendant: HJA Neal
Jurisdiction
Australia
Judgment Date
26 November 2009
Procedural Posture
Procedural Ruling / Determination of Separate Questions
Outcome
Third cross-claim dismissed; judgment for cross-defendant
Legal Topics
Exclusion Clauses, Interpretation of Exclusion Clauses, Scope of Liability, Limitation of Statutory Liability
Contracts Construction Law Exclusion Clauses Interpretation of Exclusion Clauses Scope of Liability Limitation of Statutory Liability

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Parties

The Owners Strata Plan 62930

Plaintiff

Kell & Rigby Pty Limited

First Defendant

Margaret Ann Waterhouse

Third Cross Claimant

George Floth Pty Ltd

Cross Defendant to Third Cross Claimant

HJA Neal

Third Cross Defendant

Procedural Posture

Procedural Ruling / Determination of Separate Questions

Legal Issues

  1. 1 Whether clause 4.3 of the ACEA Guideline Terms of Agreement excludes or limits liability for misleading or deceptive conduct in respect of the Services under contract, tort, or statute including the Trade Practices Act 1974
  2. 2 Whether the cause of action pleaded is 'any action or claim whatsoever… in respect of the Services' for clause 4.3 purposes

Ratio Decidendi

Clause 4.3 of the ACEA Guideline Terms of Agreement, in its natural and ordinary meaning and by reference to the structure of Part 4 of the contract, operates to exclude all liability in respect of the Services (including for statutory misleading or deceptive conduct) after the specified time period, except to the extent such exclusion is prohibited by law. Therefore, the third cross-claim is not maintainable, and judgment should be given for the cross-defendant.

Court Disposition

Third cross-claim dismissed; judgment for cross-defendant

Orders

  • Judgment entered for George Floth Pty Ltd on the third cross-claim
  • Cross-claimants to pay the cross-defendant's costs