Menzies Property Services Pty Limited v State of New South Wales [2003] NSWCA 17

New South Wales Court of Appeal

CITATION : Menzies Property Services Pty Limited v State of New South Wales [2003] NSWCA 17 HEARING DATE(S) : 10/02/03 JUDGMENT DATE : 26 February 2003

JUDGMENT OF : Stein JA at 1; Santow JA at 6; Ipp JA at 43 DECISION : (1) Appeal upheld (2) Orders made by Payne DCJ set aside (3) Answer the question posed for determination under s 18B(2) of the Arbitration (Civil Actions) Act (being whether cl 51.1 of the contract had the effect that the Contractor must indemnify the State in respect of the State's forty per cent liability to the Plaintiff) in the negative (4) The State to pay the costs of the proceedings before Payne DCJ and the costs of the appeal.

CATCHWORDS : CONTRACT - Indemnity clause by which the Contractor is to indemnify the State for any loss or liability arising from a claim against the State caused by the Contractor's negligence - Personal injury claim against Contractor and State successful - Cross claim by State for Contractor to indemnify it completely in respect of its liability - Cross claim by Contractor against State for a contribution order pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 - Held that State's negligent conduct causing injury to the plaintiff was separate and independent from Contractor's negligent conduct, such that Contractor's negligence did not cause State's loss - State not entitled to be indemnified by the Contractor in respect of the State's liability. ND Law Reform (Miscellaneous Provisions) Act 1946, Pt III LEGISLATION CITED : Arbitration (Civil Actions) Act 1983 (NSW), s 18B(2) Workers Compensation Act 1987, s 151Z(2)(c) Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 CASES CITED : Grant v Sun Shipping Co [1948] AC 549 Valkonen v Jennings Construction Ltd (South Australia Full Supreme Court, 29 November 1995, unreported) PARTIES : Menzies Property Services Pty Limited (Appellant) State of New South Wales (Respondent) FILE NUMBER(S) : CA 40457/02 COUNSEL : J Simpkins SC (Appellant) P Greenwood SC/J Kirk (Respondent) SOLICITORS : Phillips Fox (Appellant) P W Turk & Associates (Respondent)