WENKART v PITMAN [1997] NSWCA 336

WENKART v PITMAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

STEIN JA 28 October 1997

[1997] NSWCA 336

Stein JA These are complex commercial proceedings involving multiple parties, including related external litigation which occurred prior to the hearing of the suit by Hunter J.

A brief understanding of the litigation is as follows:

Sandtara Pty Ltd (Sandtara) is a company which was the plaintiff before Hunter J. It was the landlord of premises let to a company Cenrin Pty Ltd. Cenrin Pty Ltd went into liquidation and the liquidation disclaimed the lease. The lease was guaranteed by Abigroup Ltd (Abigroup), the defendant in the proceedings. Abigroup is liable to be indemnified by Mr Gennaro Abignano and a company with which he is associated, Genallco Pty Ltd (Genallco). They, that is Mr Abignano and Genallco, are liable to be indemnified by Mr Alan Pitman who, in turn, claimed an oral indemnity from Dr Thomas Wenkart.

On 25 September 1997 Hunter J gave reasons for judgment and made orders on 29 September. The orders with which we are primarily concerned, other than as to costs, are as follows:

The first order is that the defendant, Abigroup Ltd, pay the plaintiff, Sandtara, $1,307,537.10, which I will subsequently refer to as the "said sum";

second, a declaration that Mr Abignano and Genallco Pty Ltd are liable to indemnify Abigroup Ltd for its liability to the plaintiff;

third, an order that Mr Abignano and Genallco pay Abigroup Ltd the said sum;

fourth, a declaration that Mr Pitman is liable to indemnify Abignano and Genallco for their liability to Abigroup Ltd;

fifth, an order that Mr Pitman pay to Abignano and Genallco the said sum;

sixth, a declaration that Dr Wenkart is liable to indemnify Mr Pitman; and

lastly, an order that Dr Wenkart pay to Mr Pitman the said sum.

Hunter J's decision has led to three appeals.