Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 Hearing dates: 11, 12 July 2013 Decision date: 09 October 2013 Before: Emmett JA [1]; Leeming JA [22]; Sackville AJA [23]. Decision: 1. Allow the appeal on the question of indemnity costs, but otherwise dismiss the appeal. 2. Extend the time for the cross-appellant ("Ports") to file a notice of cross-appeal in the form annexed to the affidavit of Kerry Anne Smith, sworn on 20 February 2013, until seven days from the date of this order, subject to Ports' undertaking to pay Mr Collins' costs of the cross-appeal, to the extent the Court thinks appropriate in view of the disposition of the cross-appeal. 3. Direct Ports within seven days to file both its notice of cross-appeal and an undertaking in the terms referred to in Order 2. 4. Subject to compliance with Order 3, allow the cross-appeal in part. 5. Set aside Orders 3, 4, 6 and 8 made by the primary Judge on 1 November 2012. 6. In lieu of Orders 3, 4, 6 and 8 referred to in Order 5, make the following Orders: 3. There be no order as to costs between the Plaintiff ("Mr Collins") and Ports. 4. Order the Second Defendant ("AWH") to pay Mr Collins' costs, as agreed or assessed, on the ordinary basis. 6. Order that AWH pay Ports' costs of Ports' cross-claim against AWH. 8. Order that Ports pay AWH's costs of AWH's cross-claim against Ports. 7. In accordance with Ports' undertaking referred to in Order 2, direct Ports to pay 75 per cent of Mr Collins' costs of the cross-appeal. 8. Order AWH to pay 90 per cent of Mr Collins' costs of the appeal. 9. As between Ports and AWH, there be no order as to costs on the appeal and cross-appeal, to the intent that each party bear its own costs. [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: EVIDENCE - faulty shackle responsible for failure of a gangway - plaintiff injured as a result - installer of shackle obtained it from a supplier - whether plaintiff or installer bears the burden of proving that the correct shackle was or was not ordered - whether plaintiff discharged the burden of proving that the installer had not ordered the correct shackle