Colliers Jardine Pty Ltd v Castle Mall Properties Pte Ltd [2005] NSWCA 311

New South Wales Court of Appeal

Colliers Jardine Pty Ltd v Castle Mall Properties Pte Ltd [2005] NSWCA 311 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 August 2005

JUDGMENT DATE: 10 October 2005

JUDGMENT OF: Tobias JA at 1; McColl JA at 46; Brownie AJA at 47

DECISION: (a) Leave to appeal granted; (b) Direct that the appellant file a Notice of Appeal within seven days of the date hereof; (c) Appeal dismissed; (d) The appellant to pay the respondent's costs of its Notice of Motion filed on 7 July 2005, the summons for leave to appeal and the appeal

CATCHWORDS: CONTRACTS - Indemnity Clauses - Whether indemnity clause covered legal costs - Agreement between owner and manager of shopping centre - Owner to indemnify manager against all claims etc for which manager liable "in the course of properly performing its duties" under agreement - Manager successfully defended negligence claim with each party to pay own costs - Whether owner required to indemnify manager for costs - Whether indemnity confined to claims arising in course of non-negligent performance of duties - Relevance of requirement for owner to maintain public liability insurance policy for manager - Construction of ambiguous indemnity clauses - Effect of proviso that indemnity not to apply to any wilful act or omission of manager

District Court Act 1973 LEGISLATION CITED: Supreme Court Rules 1970

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 CASES CITED: F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193 New South Wales v Tempo Services Ltd [2004] NSWCA 4 Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214