MLA Holdings v Asciano Services [2010] NSWSC 204

New South Wales Supreme Court

CITATION : MLA Holdings v Asciano Services [2010] NSWSC 204

HEARING DATE(S) : 17/3/10 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 17 March 2010

DECISION : Judgment for plaintiff for damages to be assessed

CATCHWORDS : CONTRACTS - interpretation of contracts - where equipment supplied by plaintiff to defendant was damaged - whether defendant liable under contract to meet direct costs of repairs or whether defendant is entitled to be indemnified by insurance that plaintiff was required to effect and maintain.

CASES CITED : Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] 72 NSWLR 1

PARTIES : MLA Holdings Pty Limited (Plaintiff) Asciano Services Pty Limited (Defendant)

FILE NUMBER(S) : SC 2009/298768

COUNSEL : R A Cavanagh (Plaintiff) C H Withers (Defendant)

SOLICITORS : DLA Phillips Fox (Plaintiff) Piper Alderman (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

17 March 2010 (ex tempore – revised 17 March 2010)

2009/298768 MLA HOLDINGS PTY LIMITED v ASCIANO SERVICES PTY LIMITED JUDGMENT

1 HIS HONOUR: The plaintiff (MLA) and the defendant (Asciano) are parties to a "Reach Stacker Supply Agreement" made on 13 March 2007 but apparently having an effective date of 20 December 2006. Pursuant to that agreement, MLA agreed to supply certain equipment to Asciano for use by Asciano in its business. The agreement contained detailed provisions allocating liabilities between the parties, and relating to insurance. An item of equipment, known as a reachstacker, supplied by MLA to Asciano pursuant to the agreement has been damaged. The question for decision is whether, pursuant to cl 7 of the agreement, Asciano is liable to meet the direct cost of repairs of that reachstacker or whether, pursuant to cl 20, it is entitled to be indemnified by insurance that MLA was required to effect and maintain.