Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2)

[2013] NSWCA 58

NSW Court of Appeal

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Interrogate

Catchwords

1. Civil Liability
2. › Proportionate liability
3. › Apportionable claims
4. › Contract for indemnity
5. › Whether express contractual provision as to parties' rights excluded operation of Part 4
6. › Civil Liability Act 2002 (NSW), ss 3A(2), 34(1)(a), 35
1. Civil Liability
2. › Proportionate liability
3. › Apportionable claims
4. › Whether claim for contractual indemnity is 'an action for damages'
5. › Definition of 'damages' including 'any form of monetary compensation'
6. › Civil Liability Act 2002 (NSW), ss 3, 34(1)(a)
1. Civil Liability
2. › Proportionate liability
3. › Apportionable claims
4. › Whether claim 'arising from a failure to take reasonable care'
5. › Whether failure to take reasonable care must be element of successful cause of action
6. › Civil Liability Act 2002 (NSW), s 34(1)(a)
1. Civil Liability
2. › Proportionate liability
3. › Concurrent wrongdoers
4. › Whether concurrent wrongdoers caused the same loss
5. › Distinction between loss from making advance and loss from inadequate security
6. › Civil Liability Act 2002 (NSW), s 34(2)

Quick Take

A contractual indemnity clause that renders a party liable for the full amount of loss resulting from breach is inconsistent with the proportionate liability provisions in Part 4 of the Civil Liability Act 2002 (NSW), and s 3A(2) will exclude the operation of Part 4 without the parties needing to have adverted to or specifically contracted out of the apportionment provisions. A claim for contractual indemnity falls within the broad statutory definition of 'damages' as 'any form of monetary compensation'. There is a difference of opinion within the NSWCA on whether the characterisation of a claim as 'arising from a failure to take reasonable care' turns on the essential character of the successful cause of action (Macfarlan JA) or on a combination of the pleading and the court's findings (Barrett JA).