Judgment date: 12 May 2011. The Owners Strata Plan No. 62660
v Jacksons Landing Development Pty Limited  NSWSC 415.
Supreme Court of New South Wales1
Section 36 of the Civil Liability Act 2002
(CLA) bars claims for contribution by one
concurrent wrongdoer against another. A person is only a concurrent
wrongdoer when found to be so by a court.
Section 36 of the CLA does not bar a claim for contribution
where a consent judgment has been entered and no determination has
been made by the court.
The plaintiff sued a number of defendants in relation to the
allegedly defective design and construction of a sewage system
forming part of a development at Pyrmont. Various companies in the
Lend Lease Group (Lend Lease) were sued as the
developer and promoter of the development.
Harris Page & Associates Pty Limited (Harris
Page) was the engineer engaged to design the hydraulic
systems including the hydraulic components of the sewage
The Court entered consent judgments in favour of the Plaintiff
Lend Lease in the sum of $750,000 on 13 November 2008; and
Harris Page in the sum of $350,000 on 23 February 2011.
Supreme Court of New South Wales
This case involved an application by Harris Page to dismiss
claims for contribution brought against it by Lend Lease.
Harris Page submitted that the consent judgments were judgments
for the purpose of s 36 of the CLA and the claims for contribution
brought by were not maintainable.
Section 36 of the CLA provides that a defendant against whom
judgment is given under the CLA as a concurrent wrongdoer in an
apportionable claim cannot be required to contribute to any damages
or contribution recovered from another concurrent wrongdoer in
respect of the same claim.
Harris Page sought summary dismissal of the claims for
contribution on the basis that no reasonable cause of action was
The Court said 3 conditions must be satisfied in order for s 36
to bar a claim for contribution:
The claim for contribution must be against a defendant against
whom judgment is given;
The judgment must be given under Part 4 of the CLA as a
concurrent wrongdoer; and
The judgment must be given in relation to an apportionable
Ball J found the first and third conditions had been satisfied.
The second condition was the real question to be determined.
Section 34(2) of the CLA defines a concurrent wrongdoer as
"person who is one of two or
more persons whose acts or omissions . . . caused, independently of
each other or jointly, the damage or loss that is the subject of
Section 35(1) of the CLA states that in any proceedings
involving an apportionable claim:
"(a) the liability of a
defendant who is a concurrent wrongdoer in relation to that claim
is limited to an amount reflecting that proportion of the damage or
loss claimed that the court considers just having regard to the
extent of the defendant's responsibility for the damage or
(b) the court may give judgment against the defendant for not more
than that amount."
After noting authority finding that "a person is only a
concurrent wrongdoer when found to be so by the
Court"2, Ball J said it was reasonably
arguable the consent judgment against Harris Page was not a
judgment given under Part 4 and it was not obtained against Harris
Page as a concurrent wrongdoer.
Harris Page submitted that the consent judgment clearly
indicated it was sued as a concurrent wrongdoer, the claim in
respect of which it was sued met the requirements of an
apportionable claim, and that claim resulted in a judgment against
The Court, however, said it was at least arguable that the
reference to a judgment "under this Part" in s
36 was a reference to a judgment given by the Court against the
A "judgment" could only be given once the Court
determined the damage or loss attributable to the concurrent
His Honour held that s 36 did not bar a claim for contribution
where no determination was made by the Court of the amount that was
a just contribution to the plaintiff's loss having regard to
the extent of the defendant's responsibility for that damage or
The application to dismiss the claims for contribution was
dismissed with costs.
Section 36 of the CLA does not bar claims for contribution
between defendants unless there has been a determination by a court
on the relative proportion of liability of a concurrent wrongdoer.
A consent judgment is not sufficient to prevent a claim for
apportionment being made.
Defendants should be aware that if they choose to settle with a
plaintiff without resolving issues of contribution or proportionate
liability with other potential or current defendants, they run the
risk of a subsequent claim for contribution or indemnity by that
1. Ball J
2. Reinhold v New South Wales Lotteries Corporation
(No 2)  NSWSC 187
Ranked No 1 - Australia's fastest growing law firm'
(Legal Partnership Survey, The Australian July 2010)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).