Commonwealth of Australia v. Chubb Security Australia Pty Ltd [2004] NSWCA 77

New South Wales Court of Appeal

CITATION : Commonwealth of Australia v. Chubb Security Australia Pty Ltd [2004] NSWCA 77 HEARING DATE(S) : 19 February, 2004 JUDGMENT DATE : 19 February 2004

JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Palmer J at 3 DECISION : Appeal allowed with costs; judgment in the District Court set aside and judgment entered for appellant.

CATCHWORDS : CONTRACT - CONSTRUCTION - Contract for performance of work required - respondent to procure insurance cover for appellant - whether insurance cover limited to workers' compensation type cover. - HELD: Respondent was required to provide insurance cover for all types of risks. LEGISLATION CITED : Suitors Fund Act (1951) (NSW) CASES CITED : Patricia Lyons v Fondi Investments Pty Limited & Ors [1998] SCACT 76 PARTIES : Commonwealth of Australia - Appellant Chubb Security Australia Pty Limited - Respondent FILE NUMBER(S) : CA 40282/03 COUNSEL : Ms C. Guilfoyle (Sol) - Appellant D.J. Russell SC - Respondent SOLICITORS : Australian Government Solicitor - Appellant Minter Ellison - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 9104/01 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

Ex tempore judgment

1 HANDLEY JA: I agree with Palmer J. 2 BEAZLEY JA : I agree with Palmer J. 3 PALMER J : The appellant, the Commonwealth, appeals from a judgment of Garling DCJ delivered on 13 March 2003. The appellant was the defendant/cross claimant in the Court below and the respondent, Chubb, was the cross defendant. The facts are straightforward: the issue is one of construction of a contract. 4 The Commonwealth was the occupier of premises at 100 Market Street, Sydney ("the ATO building"). By a contract dated 10 March 1998, Chubb was engaged by the Commonwealth to provide security services at the ATO Building ("the Security Contract"). 5 On 13 January 1999, Ms Uma Manning, an employee of Chubb, was working as a security guard at the ATO Building in performance of the Security Contract. She was asked by an employee of the ATO to adjust a TV monitor which was fixed to a wall. As she went to do that, the monitor fell off the wall, striking her and causing her injury. Ms Manning sued the Commonwealth in the District Court for damages. Her sole cause of action was founded on the Commonwealth's liability as occupier of the ATO building. The Commonwealth cross claimed against Chubb, alleging a breach of the Security Contract, the terms of which I will come to in a moment. Ms Manning settled her claim against the Commonwealth, and judgment in an amount of $105,375 plus costs was entered by consent against the Commonwealth. The sole issue remaining for determination by Garling DCJ was the Commonwealth's cross claim against Chubb. 6 The Commonwealth sued for damages for breach of clause 9.1 of the Security Contract. That clause provided: 9. INDEMNITY