Shark Fin Burwood Pty Ltd v Ducgo Pty Ltd

[2003] VSCA 20

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Breach of contract
3. › Damages
4. › Breach exposing innocent party to liability to third person
5. › Whether full amount of that liability recoverable as damages for breach of contract
6. › Implied terms
7. › Merchantable quality
8. › Goods Act 1958 (Vic), s 19
1. Damages
2. › Contract
3. › Measure of damages
4. › Breach of contract exposing party to third party liability
5. › Right to full indemnity as contractual damages
6. › Distinction between contractual indemnity and statutory contribution between tortfeasors
7. › Wrongs Act 1958 (Vic), Part IV, ss 23B, 24(2)
1. Practice and Procedure
2. › Election
3. › Whether party elected to abandon contractual claim by accepting tortious contribution
4. › Construction of counsel's submissions at trial
1. Practice and Procedure
2. › Appeal
3. › Notice of contention
4. › Extension of time to file and serve
5. › Supreme Court (General Civil Procedure) Rules 1996 (Vic), r 64.17(5)

Quick Take

Where a supplier's breach of contract exposes the buyer to third party liability, the buyer is entitled to recover the full amount of that liability as damages for breach of contract, and is not limited to a proportionate contribution under Part IV of the Wrongs Act 1958 (Vic). The fact that the buyer was also in breach of a duty of care to the third party does not diminish the contractual right to full indemnity.