FOX v LEIGHTON CONTRACTORS PTY LTD & ORS [2008] NSWCA 23

Appeal Outcome: Special leave application granted by the High Court – 17 November 2008

New South Wales Court of Appeal

CITATION: FOX v LEIGHTON CONTRACTORS PTY LTD & ORS [2008] NSWCA 23

HEARING DATE(S): 7 December 2007

JUDGMENT DATE: 7 March 2008

JUDGMENT OF: Giles JA at 1; McColl JA at 1; Basten JA at 9

(1) (a) Allow the appeal and set aside order 2 of the trial judge dated 14 December 2006 dismissing the claims made by the plaintiff, Brian Allan Fox, against the first defendant, Leighton Contractors Pty Ltd and the third defendant, Downview Pty Ltd; (b) in lieu thereof, give judgment for the plaintiff against the first and third defendants in the amount of $472,562.

(2) (a) Set aside order 5 below in relation to the costs of the first and third defendants; (b) order that the first and third defendants pay the plaintiff's costs of the trial.

(3) Order that the first and third respondents pay the appellant's costs of the appeal. DECISION: (4) Dismiss the appeal with respect to the second respondent with no order as to costs.

(5) On the cross-appeal: (a) set aside orders 4 and 6 below dismissing the cross-claim and awarding costs in respect thereof; (b) order that Downview Pty Ltd pay 80% of the judgment debt incurred by Leighton Contractors Pty Ltd to Brian Allan Fox, and (c) order that Downview Pty Ltd pay Leighton Contractors Pty Ltd's costs of the cross-appeal.

(6) Grant a Suitors' Fund certificate to: (a) the first and third respondents in respect of the costs of the appeal; (b) Downview Pty Ltd in respect of the cross-appeal unless disqualified pursuant to s 6(7) of the Suitors' Fund Act 1951 (NSW).