Cleary Brothers (Bombo) Pty Ltd v Waste Recycling & Processing Service of NSW [2007] NSWSC 1389

New South Wales Supreme Court

CITATION : Cleary Brothers (Bombo) Pty Ltd v Waste Recycling & Processing Service of NSW [2007] NSWSC 1389

HEARING DATE(S) : 26 November 2007

JUDGMENT DATE : 30 November 2007

JUDGMENT OF : Biscoe AJ

DECISION : 1. Judgment for defendant; 2. Plaintiff to pay defendant's costs of proceedings.

CATCHWORDS : CONTRACT- implication of term - operating agreement for waste transfer station - third party injured when fell over guard rail that was too low - whether owner of waste transfer station under implied contractual obligation to operator to ensure that its design was adequate to ensure its safe operation - whether operator separately agreed to indemnify owner against liability re injured third party.

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CASES CITED : Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Liverpool City Council v Irwin [1977] AC 239 Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276

PARTIES : Cleary Brothers (Bombo) Pty Limited (Plaintiff) Waste Recycling & Processing Service of NSW (Defendant)

FILE NUMBER(S) : SC 6180/05

COUNSEL : Mr R R Stitt QC and Mr N J Owens (Plaintiff) Mr P W Taylor SC and Mr A C Scotting (Defendant)

SOLICITORS : Alvaro Edwards (Plaintiff) General Insurance Law Department (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BISCOE AJ

30 November 2007

6180/05 CLEARY BROTHERS (BOMBO) PTY LTD v WASTE RECYCLING & PROCESSING SERVICE OF NSW JUDGMENT 1 HIS HONOUR: This is a claim by the plaintiff Cleary Brothers (Bombo) Pty Ltd (Cleary) against the defendant Waste Recycling & Processing Service of NSW (Waste) for damages for breach of contract. The damages claimed are in an amount equivalent to an indemnity in respect of damages, interest on damages and legal costs paid by Cleary pursuant to a judgment against Cleary and Waste in proceedings brought against them by a Mr Meafou. BACKGROUND 2 Waste owns a waste transfer station (Transfer Station) in Artarmon. Since 1994, the Transfer Station has been operated by Cleary pursuant to a written agreement dated 27 May 1994 (1994 Agreement). 3 On 16 September 2000, Mr Meafou was unloading waste into the waste pit at the Transfer Station when he fell over a guard rail along the edge of the platform and into the waste pit itself. Mr Meafou suffered injury as a result of his fall. 4 On 14 November 2001, Mr Meafou commenced proceedings against Waste. 5 On 29 January 2002, Waste's solicitors wrote to Cleary as follows: The Plaintiff, Sonny Meafou alleges that he was injured at Artarmon Waste Recycling and Transfer Station on 16 September 2000 because of negligence by my client.