Vinidex v Thiess [2000] NSWCA 67

New South Wales Court of Appeal

CITATION : Vinidex v Thiess [2000] NSWCA 67 FILE NUMBER(S) : CA 40650/98 HEARING DATE(S) : 22/03/00 JUDGMENT DATE : 30 March 2000

PARTIES : Vinidex Tubemakers Pty Limited - Plaintiff Thiess Contractors Pty Limited - Defendant JUDGMENT OF : Sheller JA at 1; Fitzgerald JA at 2; Rolfe J at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT NR 600030/97 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER :

COUNSEL : Mr J.L. Glissan QC/Mr K.J. Manion - Appellant Mr J. Poulos QC/Ms C. Pinkerton - Respondent SOLICITORS : McCabes - Appellant Moray & Agnew - Respondent CATCHWORDS : APPORTIONMENT OF DAMAGES BETWEEN JOINT TORTFEASORS - LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1965 - Whether it was a proper exercise of discretion, in all the circumstances and having regard to the applicable principles, to hold each tortfeasor equally liable. Held that notwithstanding the caution which should attend interference with the exercise of the trial Judge's assessment that was not the proper apportionment and the Court of Appeal should re-assess the apportionment. Held that in lieu of equal amounts the appellant should pay 20 per cent and the respondent 80 per cent. LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 A.V. Jennings Construction Pty Limited v Maumill (1956) 30 ALJ 100 Roads and Traffic Authority v Scroop & Ors (Court of Appeal - 30 September 1998 - unreported) Oxley County Council v MacDonald (1999) NSWCA 126 CASES CITED: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Wynbergen v Hoyts Corporation Pty Limited (1977) 72 ALJR 65 Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45 DECISION : 1. Appeal allowed; 2. In lieu of the orders made by Grove J:-; (i) judgment for the apellant on its cross-claim against the respondent in the sum of $537,318.40; (ii) judgment for the respondent on its cross-claim against the appellant in the sum of $134,329.60; 3. The resondent pay to the appellant any amount the appellant has paid or pays to the plaintiff on account of the plaintiff's costs beyond 20 per cent of those costs and the appellant pay to the respondent any amount the respondent has paid or pays to the plaintiff on account of the plaintiff's costs beyond 80 per cent of those costs; 4. The respondent pay the appellant's costs of the appeal and receive a certificate under the Suitors Fund Act if otherwise entitled.