WATER ACT 2000 - SECT 360L Liability of bulk water parties

WATER ACT 2000 - SECT 360L

360L Liability of bulk water parties

(1) A bulk water party is not civilly liable to another bulk water party (a
"relevant entity" ) for any consequential loss suffered by the relevant entity arising out of, or in relation to, an act or omission, including a negligent act or omission, of the bulk water party in the performance of, or in a failure to perform, its functions under this Act or its obligations—

(a) other than to the extent that the consequential loss was caused, or contributed to, by the wilful default of the bulk water party; or

(b) if the bulk water party recovers compensation from an entity in relation to the consequential loss suffered by the relevant entity—other than to the extent of the net compensation amount.

(2) To remove any doubt, it is declared that—

(a) nothing in this section is taken—

(i) to create a cause of action against a bulk water party; or

(ii) to limit the liability of the bulk water party to an entity for a claim for personal injury suffered by the entity; and

(b) to the extent that an act or omission of a bulk water party is inconsistent with a contract, in force immediately before the commencement of this section, to which the bulk water party and a relevant entity are parties, the bulk water party’s liability to the relevant entity is limited by subsection (1) .

(3) A bulk water party may, in a contract, expressly vary or exclude the operation of subsection (1) in relation to the liability of the bulk water party to another party to the contract.

(4) Subsection (1) does not apply to a bulk water party to the extent that a contract mentioned in subsection (3) expressly varies or excludes its operation in relation to the other party to the contract.

(5) In this section—


"consequential loss" includes the following—

(a) any loss of anticipated or actual revenue or profits;

(b) loss of use of equipment;

(c) business interruption or a failure to realise anticipated savings;

(d) loss of data;

(e) downtime costs or wasted overheads;

(f) loss of goodwill or business opportunity;

(g) punitive or exemplary damages;

(h) any special or indirect loss or damage of any nature whatsoever.

"function" includes power.


"net compensation amount" , for compensation recovered by a bulk water party, means the compensation less an amount that represents any loss suffered by the bulk water party in relation to the consequential loss and any costs incurred in recovering the compensation.


"obligations" , of a bulk water party, means the bulk water party’s obligations under the following—

(a) the bulk water supply code or operating protocols;

(b) a bulk water supply agreement in which the bulk water party is named as a party;

(c) an instrument made, or direction given, under the bulk water supply code or operating protocols.

"operating protocols" means the operating protocols made under the bulk water supply code.


"perform" includes purport to perform.


"wilful default" , by a bulk water party, includes—

(a) any fraudulent conduct, including concealment; and

(b) any criminal conduct; and

(c) any intentional or reckless breach of, or failure to remedy a breach of, the bulk water party’s obligations.