White v Malco [2000] NSWSC 1165

New South Wales Supreme Court

CITATION : White v Malco [2000] NSWSC 1165 FILE NUMBER(S) : SC 20152/98 HEARING DATE(S) : 10/11/2000 JUDGMENT DATE : 21 December 2000

PARTIES : Bruce Charles White v Malco Engineering Pty Limited JUDGMENT OF : James J at 1

MJ Neil QC/I Mescher - 1st Defendant COUNSEL : G Swinton - 2nd Defendant D Nock SC - cross-defendant I Faulkner - cross defendant Cutler Hughes & Harris SOLICITORS : Leitch Hasson & Dent Ebsworth & Ebsworth Henry Davis York CATCHWORDS : Negligence - causation - remoteness of damage - cross-claim - contract - reasonable fitness DECISION : Decision on cross-claims

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Thursday 21 December 2000

20152/98 - White v Malco Engineering Pty Limited & Ors

JUDGMENT 1 HIS HONOUR: In this matter I gave a lengthy preliminary judgment on 29 October 1999. Commencing at paragraph 12 of the preliminary judgment I identified eleven cross-claims. In the preliminary judgment I dealt extensively with some of the cross-claims, to some extent with some of the other cross-claims and not at all with the remaining cross-claims. 2 When I delivered my preliminary judgment I did not direct entry of any verdict in the action by the plaintiff against the defendants or in any of the cross-claims. Subsequently, after further argument, I directed entry of verdicts disposing of the plaintiff's claims against the two defendants, Malco Engineering Pty Limited ("Malco") and Skilled Engineering Pty Limited ("Skilled"). 3 The various cross-claims were mentioned before me on 18 April 2000 and again on 19 July 2000. In a judgment I gave on 19 July 2000 I said that I would proceed as I had indicated on 18 April 2000, that is I would not withdraw anything I had said in the preliminary judgment of 29 October 1999 about the cross-claims which I had identified as cross-claims 1, 2, 7, 8, 10 and 11 in the preliminary judgment and what I said in my preliminary judgment disposes of those cross-claims (subject to the entering of verdicts and the making of orders to give effect to my judgment). However, I said in my judgment of 19 July 2000 that I withdrew anything I had said in the preliminary judgment about the cross-claims identified as cross-claims 3, 4, 5, 6 and 9 in my preliminary judgment, that is to say I withdrew pars 554 to 592 of the preliminary judgment. 4 My principal reason for withdrawing these parts of my preliminary judgment, as explained in remarks I made in Court on 18 April 2000, was that these cross-claims had not been properly argued, and in some cases had hardly been argued at all, at the principal hearing and I was concerned that the rules of procedural fairness should be observed. 5 In my judgment of 19 July 2000 I referred to what was said in par34 of the joint judgment of five justices of the High Court in DJL v Central Authority 74 ALJR 706, as affirming that a superior Court of record, as the Supreme Court is, has full power to re-hear or review a case until judgment is drawn up, passed and entered. In the present case judgment has not yet been entered on any of the cross-claims. In any case, what I said in my preliminary judgment about many of these cross-claims was inconclusive and did not purport to dispose of the cross-claims. 6 The outstanding cross-claims, as identified by me in the preliminary judgment and retaining the numbering of the cross-claims used by me in the preliminary judgment are:-