Amaca Pty Limited v CSR Limited (Re: Anne Maree Peck) [2017] NSWDDT 12

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Amaca Pty Limited v CSR Limited (Re: Anne Maree Peck) [2017] NSWDDT 12 Hearing dates: On the papers Date of orders: 29 November 2017 Decision date: 29 November 2017 Before: Judge D. Russell Decision: 1. Order that the cross-defendant pay 30% of the cross-claimant's costs of defending the plaintiff's claim. 2. Order that the cross-defendant pay the cross-claimant's costs of the cross-claim. 3. Order that the cross-defendant pay the cross-claimant's costs of the determination of the issue of defence costs of the cross-claim. Catchwords: COSTS – contribution to defence costs – parties under a co-ordinate liability as partners Legislation Cited: Civil Procedure Act 2005 Partnership Act 1892 Dust Diseases Tribunal Regulation 2013 Cases Cited: Amaca Pty Limited v CSR Limited [2015] VSC 582 Herbert v Tamworth City Council (No.4) [2004] NSWSC 394; 60 NSWLR 476 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Costs Parties: Amaca Pty Limited (cross-claimant) CSR Limited (cross-defendant) Representation: Counsel: Mr J. Sheller (cross-claimant) Mr D. Miller, solicitor (cross-defendant)

Solicitors: Mills Oakley (cross-claimant) Colin Biggers & Paisley (cross-defendant) File Number(s): 135/2017/CC1

Judgment 1. In these proceedings Ms Anne Maree Peck sued Amaca Pty Limited seeking damages for her disease of mesothelioma. That action was settled by a Consent Order filed in court on 23 October 2017. 2. Amaca Pty Limited ("Amaca") filed a cross-claim against CSR Limited ("CSR") seeking contribution from CSR as a joint tortfeasor, and also as a partner in a business (Hardie-BI) which produced asbestos insulation products. Ms Peck alleged that she was exposed to dust from Hardie-BI products. 3. The cross-claim was settled by an Order filed in the Tribunal on 23 October 2017. By consent the Tribunal ordered pursuant to clause 56 of the Dust Diseases Tribunal Regulation 2013 that CSR pay 30% of the judgment sum (entered in favour of the plaintiff and against Amaca) directly to the plaintiff's solicitor. An order was also made by consent pursuant to clause 56 that CSR pay to Amaca 30% of the plaintiff's costs as agreed or assessed. 4. The Order noted that the following issues were agreed between Amaca and CSR: 1. Apportionment; 2. Reasonableness of the plaintiff's settlement. 1. Finally, the Order noted that CSR disputed that Amaca was entitled to contribution from CSR towards Amaca's defence costs, as pleaded in paragraph 13 of the cross-claim brought by Amaca against CSR. The parties agreed that the remaining issue would be dealt with on the papers, after written submissions were filed for each party.