D TANNOUS NO 2 PTY LIMITED & ANOR v BEVILLESTA PTY LIMITED [2009] NSWSC 782

New South Wales Supreme Court

CITATION : D TANNOUS NO 2 PTY LIMITED & ANOR v BEVILLESTA PTY LIMITED [2009] NSWSC 782

HEARING DATE(S) : Friday 26 June 2009

JUDGMENT DATE : 12 August 2009

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

(1) The notice of motion in relation to the relief sought in paragraphs 1 and 2 is dismissed. DECISION : (2) In relation to paragraph 4 of the notice of motion: (a) Liberty to the defendant to apply to the Registrar as may be necessary in relation to particulars of the claim in paragraphs 1 to 5 of the statement of claim, following service of any amended statement of claim. (b) In relation to the claim by the second plaintiff in paragraphs 10 to 14 of the statement of claim, liberty to the defendant to apply to the Registrar in relation to particulars, following service of any amended statement of claim. (3) Order that the plaintiffs' solicitor is to provide to the defendant's solicitor a certificate pursuant to s.347 of the Legal Profession Act 2004 within 14 days of this order. (4) Costs of the notice of motion are reserved. Liberty to either party to apply in respect thereto.

CATCHWORDS : PROCEDURE - SUMMARY DISMISSAL PROCEEDINGS – claim based on contractual indemnity provision in Deed between the parties to a commercial venture – indemnity by defendant in favour of first plaintiff in respect of any liability that the lessee (first plaintiff) may have to pay income tax on the amount of any fit-out contribution paid by the lessor (the defendant) to the lessee in connection with a lease – additional provision that lessor cease to have any liability to indemnify on the third anniversary of the date of the Deed – questions of construction – competing interpretations – consideration of interaction between the two clauses in question – construction on indemnity as a commercial contract may require evidence as to surrounding circumstances known to the parties at the time of the Deed – not amenable to summary dismissal order – additional claim by second plaintiff for management fees – establishment of the contract alleged – the nature of any contract is a matter for evidence and, accordingly, a question of fact for determination at a final hearing – relevant principles determining the nature and scope of evidence required in relation to the contract claim – not amenable to summary dismissal – orders