McLennan Asset Services Pty Limited v Macquarie Investments Limited [2017] NSWSC 1811

McLennan Asset Services Pty Limited v Macquarie Investments Limited [2017] NSWSC 1811

Construed as a whole and in context, clause 7 required the defendants to deposit or pay amounts the subject of Conspiracy Claim Lawyer Estimates and Conspiracy Claim Lawyer Invoices in accordance with clause 7(c)(vii) and clause 7(c)(ix), without first being entitled to withhold payment on the ground that the estimates or invoices were not reasonable. The express reasonableness qualification in clause 7(b) was not repeated in the payment machinery; strict payment deadlines contrasted with the absence of a deadline for discussions about reasonableness; and the commercial purpose of funding the defence of complex Cayman Islands proceedings supported a pay-now, resolve-later allocation of risk.

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Equity Proceeding Seeking Declaratory Relief Concerning Construction of a Settlement Deed / Principal Judgment on Amended Summons
Outcome
Plaintiffs entitled to the declaratory relief sought by the amended summons; defendants ordered to pay the plaintiffs' costs of the proceeding.
Legal Topics
['construction of Settlement Deed' 'indemnity' 'legal Costs Funding' 'declaratory Relief' 'costs of Proceedings']
['contracts' 'equity' 'civil Procedure'] ['construction of Settlement Deed' 'indemnity' 'legal Costs Funding' 'declaratory Relief' 'costs of Proceedings']

Case Brief

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Procedural Posture

Equity Proceeding Seeking Declaratory Relief Concerning Construction of a Settlement Deed / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether, on the proper construction of clause 7 of the Settlement Deed, the defendants were required to pay estimated legal costs and disbursements within 14 days of provision of each estimate.' 'Whether the obligations in clause 7(c)(vii) and clause 7(c)(ix) to deposit funds for estimates and pay invoices were qualified by a requirement that the costs be reasonable.' 'Whether declaratory relief should be granted in the terms sought by the plaintiffs.']

Ratio Decidendi

Construed as a whole and in context, clause 7 required the defendants to deposit or pay amounts the subject of Conspiracy Claim Lawyer Estimates and Conspiracy Claim Lawyer Invoices in accordance with clause 7(c)(vii) and clause 7(c)(ix), without first being entitled to withhold payment on the ground that the estimates or invoices were not reasonable. The express reasonableness qualification in clause 7(b) was not repeated in the payment machinery; strict payment deadlines contrasted with the absence of a deadline for discussions about reasonableness; and the commercial purpose of funding the defence of complex Cayman Islands proceedings supported a pay-now, resolve-later allocation of risk.

Court Disposition

Plaintiffs entitled to the declaratory relief sought by the amended summons; defendants ordered to pay the plaintiffs' costs of the proceeding.

Orders

  • ['Declarations made in terms of prayers 1A and 1B of the amended summons filed in Court on 15 December 2017.' 'Declaration made in terms of prayer 1C of the amended summons, with the added words "pursuant to cl 7(c)(vii) of the Settlement Deed".' "Defendants to pay the plaintiffs' costs of the proceeding." 'Exhibits...