Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58 Hearing dates: 11 December 2012 Decision date: 20 March 2013 Before: Macfarlan JA at [1] Meagher JA at [35] Barrett JA at [37] Decision: (1) The Court notes that it is appropriate for it to deal with CTC's Notice of Contention. (2) CTC's Notice of Contention is dismissed. (3) CTC is to pay Perpetual's costs of CTC's Notice of Motion filed on 24 August 2012. (4) The orders made on 13 August 2012 are confirmed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CIVIL LIABILITY - proportionate liability - Part 4 of the Civil Liability Act 2002 - contract for indemnity - whether express provision as to parties' rights excluded operation of Part 4 - whether "an action for damages" within the meaning of Part 4 - whether a claim "arising from a failure to take reasonable care" - whether concurrent wrongdoers caused the same loss - whether concurrent wrongdoers liable to plaintiff Legislation Cited: Civil Liability Act 2002 Uniform Civil Procedure Rules 2005 Wrongs Act 1958 (Vic) Cases Cited: Aquagenics Pty Ltd v Break O'Day Council [2010] TASFC 3 Commonwealth Bank of Australia v Witherow [2006] VSCA 45 Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216 Godfrey Spowers (Victoria) Pty Ltd v Lincoln Scott Australia Pty Ltd [2008] VSCA 208; (2008) 21 VR 84 Mitchell Morgan Nominees Pty Ltd v Vella [2011] NSWCA 390; 16 BPR 30,189 Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 Perpetual Trustee Co Ltd v CTC Group Pty Ltd [2012] NSWCA 252 Perpetual Trustee Co Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367 Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187 Texts Cited: B McDonald, "Indemnities and the Civil Liability Legislation" (2011) 27 Journal of Contract Law 56-64 B McDonald & J Carter, "The Lottery of Contractual Risk Allocation and Proportionate Liability" (2009) 26 Journal of Contract Law 1 Category: Principal judgment Parties: Perpetual Trustee Company Ltd (Appellant) CTC Group Pty Ltd (Respondent) Representation: Counsel: J B Simpkins SC (Appellant) J E Maconachie QC (Respondent) Solicitors: Gadens (Appellant) Gilchrist Connell (Respondent) File Number(s): CA 2006/266040 Decision under appeal Jurisdiction: 9111 Citation: Perpetual Trustee Company Limited v El-Bayeh [2010] NSWSC 1487; Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049 Before: McCallum J File Number(s): SC 2006/266040