TRIVAN PTY LTD (IN LIQUIDATION) FORMERLY TRIVAN BUILDING SERVICES PTY LTD v GOWA PTY LTD FORMERLY A AND G FORMWORK CONTRACTORS PTY LTD and ANOR [1994] NSWCA 320

TRIVAN PTY LTD (IN LIQUIDATION) FORMERLY TRIVAN BUILDING SERVICES PTY LTD v GOWA PTY LTD FORMERLY A & G FORMWORK CONTRACTORS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 21 February 1994 [1994] NSWCA 320

Priestley JA There is a notice of motion before the court in an appeal in proceedings in which a worker brought proceedings claiming damages for negligence against the building contractor which had contracted to build a building on which the worker was working at the time of the alleged negligence.

The worker did not bring proceedings against his employer. The defendant in the workers' proceedings, the contractor, by cross-claim joined the employer. An appeal from Cole J's judgment in those first instance proceedings is going ahead, and is in the normal preparatory stages.

The notice of motion before the court today by the claimant appellant building contractor asks that certain proceedings which were taken last year by the building contractor against Employers' Mutual Indemnity Workers' Compensation Ltd should be moved into the Court of Appeal and determined simultaneously with the appeal which has been brought by the building contractor against the worker and also against the employer as another respondent in the appeal.

The reason for the application is the wish to have a point of construction under s151Z of the Workers' Compensation Act, to be raised in the appeal, determined in proceedings in which Employers' Mutual Indemnity Workers' Compensation Ltd would be represented. That company was said by the employer to be its insurer for purposes of the alleged negligence. That company, however, denies that it is liable to indemnify the employer in regard to the negligence but it wishes also, if that claim should fail, to be heard on the construction point involving s151Z. The reason why it might not be able to be heard simply in the appeal is that the employer is in liquidation and may well take no part in the appeal proceedings.