Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Limited [2022] NSWCA 246

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bellevarde Constructions Pty Ltd v L'Officina by Vincenzo Australia Pty Limited [2022] NSWCA 246 Hearing dates: 25 October 2022 Date of orders: 2 December 2022 Decision date: 02 December 2022 Before: White JA at [1]; Brereton JA at [2]; Simpson AJA at [51]. Decision: (1) Dismiss the appeal. (2) On the cross-appeal, set aside the orders made by the District Court on 10 May 2022 and in lieu thereof: (a) Judgment for the plaintiff against the first defendant in the sum of $750,000 (judgment sum) inclusive of interest. (b) Order that the first defendant pay the plaintiff's costs of the proceedings. (c) Dismiss the first cross-claim. (d) Dismiss the second cross-claim. (e) Order that the first defendant pay the second defendant's costs of both cross-claims. (f) The plaintiff's claim against the second defendant and against the third defendant be dismissed. (g) The first defendant pay the second defendant's costs of the proceedings on an indemnity basis from 19 November 2021. (h) No order as to the costs of the notices of motion filed 18 March 2022, 23 March 2022 and the amended notice of motion filed in court on 28 April 2022 with the intention that each party bear its own costs of those motions. (3) Liberty to apply within fourteen days to vary any of the above orders, any such application to be made by written submission lodged with the Associate to Brereton JA. (4) Liberty to apply within fourteen days for any necessary direction in respect of restitution. Catchwords: NEGLIGENCE – Duty of care – Where subcontractor injured lifting heavy door on construction site – Apportionment of liability between head contractor and manufacturer of door – Insufficient evidence to conclude door-manufacturer owed any relevant duty of care to injured worker Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 569; [2005] HCA 26 James Hardie & Coy Pty Limited v Roberts (1999) 47 NSWLR 425; [1999] NSWCA 314 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161; [2006] HCA 19 Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65; [1997] HCA 52 Category: Principal judgment Parties: Bellevarde Constructions Pty Ltd (Appellant/Second Cross-Respondent) L'Officina by Vincenzo Australia Pty Limited (Second Respondent/Cross-Appellant) Alan Monahan (First Cross-Respondent) Representation: Counsel: J B Turnbull SC with B Hull (Appellant/Second Cross-Respondent) P Morris SC with R Gambi (Second Respondent/Cross-Appellant)