JUDGMENT No. 4], b bt coucscesosecoesncel, SOecoceeceee IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY No. ACTG39 of 1984 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: BESSELINK BROS. PTY. LIMITED Appellant (Cross Respondent) AND: CITRA CONSTRUCTIONS PTY. LIMITED Respondent (Cross' Appellant) Coram: Smithers, Northrop and Gallop JJ. REASONS FOR DECISION THE COURT 31 October 1984 In this case judgment was entered by the learned judge for $206,093.10 damages and costs in favour of the plaintiff against the appellant and respondent who were defendants in the action. The plaintiff was an employee of the appellant and was injured in the course of his employment with the appellant in the carrying out of painting works being carried out by the appellant as sub-contractor of the respondent as builder. The injuries arose out of defects in scaffolding erected by the respondent and being used by the appellant's employees. (b) (c) Such insurance an $500,000. gathered from the presence of the words "to the satisfaction according to its natural meaning no such condition precedent is to be found. He argued also that clause 9 should be construed strictly against the builder on the ground that it was, certainly in substance, a clause excluding liability in the builder otherwise existing either to persons or the appellant itself. He relied on the principles discussed by Windeyer J. in Thomas National Transport v. May and Baker (1966) 115 CLR 353 at 376 concerning construction of contracts described as exemption, exclusion or protective clauses, In our opinion clause 9 is not such a clause. On the contrary it is a clause casting positive obligations on the appellant to provide insurance cover against those liabilities in the builder which exist or may exist by reason of the carrying out of the works. There is no 4. element of excluding any liability which would otherwise exist. This submission must therefore fail. Mr Leslie also contended that the appellant could not be liable for failure to effect an insurance protecting the builder because the appellant had no insurable interest in respect of the builder's liabilities. In our view this is to misconceive the obligation. The obligation was to do what was necessary, if need be, as agent of the respondent and with his co-operation, if sought, to effect the appropriate form of cover. In this respect the respondent might be required to play a part, but no request in that matter was ever made. This submission must therefore fail. It was finally contended by the appellant that as the respondent had a right to indemnity from its own insurer in respect of the liability to the Plaintiff, it suffered no loss through the appellant's failure to comply with clause 9. In our view this submission is not Sustainable. So far as the appellant was concerned, the fact that the respondent had effected a policy of the nature mentioned was purely fortuitous. There was no duty on the respondent to do this or even to make a claim under that policy. It was purely res inter alios acta. this submission must therefore also fail. In the result the appeal will be dismissed. The cross appeal will be dismissed. The appellant is ordered to pay the costs of the appeal. There will be no order as to costs of the cross appeal. A tne 4 1,8 cam + . IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 39 of 1984 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITO BESSELINK BROS. PTY. LIMITED Appellant (Cross Responder CITRA CONSTRUCTIONS PTY. LIMITED Respondent (Cross Appellar ORDER JUDGES MAKING ORDER H Smithers, Northrop & Gallop JJ. DATE OF ORDER : 31 October 1984 WHERE MADE : Canberra THE COURT ORDERS THAT 1. The appeal be dismissed. 2. The cross-appeal be dismissed. 3. The appellant pay the costs of the appeal. 4 There be no order as to the costs of the cy Date Entered: \3 January 1985