Qantas Airways Ltd v Aravco Ltd [1996] HCA 12

High Court of Australia Brennan CJ Gaudron, McHugh, Gummow and Kirby JJ Qantas Airways Ltd v Aravco Ltd [1996] HCA 12

ORDER

1. Appeal allowed.

2. Set aside the orders of the New South Wales Court of Appeal and in lieu thereof order that the appeal by the cross-defendant against the declaration and the order of Giles J against the cross-defendant be dismissed with costs.

3. The respondent pay the appellant's costs in this Court.

Cur adv vult

The following written judgments were delivered:—

27 May 1996 Brennan CJ, Gaudron, McHugh and Gummow JJ.

The question in this appeal is whether s 68 of the Trade Practices Act 1974 Cth (the Act) makes void a contractual term which required the respondent (Aravco) to indemnify the appellant (Qantas) against all liabilities incurred by Qantas arising out of or in any way connected with the performance of services by Qantas to Aravco.

Factual background

Qantas entered into a contract with Aravco to perform certain services in relation to an aircraft operated by Aravco but owned by BAT Industries Plc (BAT). As a result of Qantas' negligence, the aircraft suffered damage. Subsequently, BAT sued Qantas in the Supreme Court of New South Wales for the damage to the aircraft. Qantas admitted liability for the damage, but, by a cross-claim, it sought indemnity from Aravco for the damages that it had to pay to BAT. Qantas' claim for indemnity was based on cl 4 of its contract with Aravco.

Clauses 4 and 7 of the contract between Qantas and Aravco provided:

4. The Operator agrees regardless of any negligence on the part of Qantas to release, hold harmless and indemnify Qantas from and against all liabilities, claims, damages, losses, costs and expenses of whatever nature, howsoever occurring which may accrue against or be suffered by Qantas arising out of or in any way connected with the performance of the said services unless caused by wilful misconduct on the part of Qantas or any of its servants or agents acting within the scope of their employment.