Sensis Pty Ltd v Bivami Pty Ltd [2013] FCA 1054

Sensis Pty Ltd v Bivami Pty Ltd [2013] FCA 1054

The Indemnity is triggered only by actions commenced by the Lessee against Bivami claiming that no default had occurred which gave Bivami the right to call upon the bank guarantee. The claims in the primary proceedings alleged not that no default had occurred, but that Bivami lacked a reasonable belief that a default had occurred. Therefore, the obligation to indemnify was not enlivened under the language of the Indemnity.

Jurisdiction
Australia
Judgment Date
16 October 2013
Procedural Posture
Contract Construction of Indemnity (cross Claim) / Judgment on Third Cross Claim
Outcome
Third cross-claim dismissed; costs ordered against Bivami Pty Ltd.
Legal Topics
['construction of Indemnity Clauses' 'triggering of Contractual Indemnity' 'scope of Indemnity for Legal Costs']
['contract Law'] ['construction of Indemnity Clauses' 'triggering of Contractual Indemnity' 'scope of Indemnity for Legal Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Contract Construction of Indemnity (cross Claim) / Judgment on Third Cross Claim

Legal Issues

  1. 1 ['Whether the obligation to indemnify under the Indemnity has been triggered by the primary proceeding brought by applicants' "Scope of the 'costs' to which Bivami is entitled under the Indemnity if triggered" 'Appropriate form of final orders if indemnity obligation is established']

Ratio Decidendi

The Indemnity is triggered only by actions commenced by the Lessee against Bivami claiming that no default had occurred which gave Bivami the right to call upon the bank guarantee. The claims in the primary proceedings alleged not that no default had occurred, but that Bivami lacked a reasonable belief that a default had occurred. Therefore, the obligation to indemnify was not enlivened under the language of the Indemnity.

Court Disposition

Third cross-claim dismissed; costs ordered against Bivami Pty Ltd.

Orders

  • ['The third cross-claim be dismissed.' 'The first cross-claimant on the third cross-claim (Bivami Pty Ltd) pay the costs of the first and second cross-respondents on the third cross-claim.']