Bentley Capital Limited v Keybridge Capital Limited (No 3) [2024] FCA 1139

Bentley Capital Limited v Keybridge Capital Limited (No 3) [2024] FCA 1139

Bentley’s payments to Mr Johnson were advances, not indemnity; neither Bentley nor Keybridge had yet indemnified, and both are obliged to indemnify Mr Johnson to the extent he is not otherwise indemnified by insurance or the other entity. Upon indemnification, the co-indemnifier is obliged to contribute equally, absent any exception such as lack of clean hands.

Parties
First Plaintiff: Bentley Capital Limited; Second Plaintiff: William Matthew Johnson; First Defendant: Keybridge Capital Limited; Second Defendant: Australian Style Group Pty Ltd; Third Defendant: John Dean Patton; Fourth Defendant: Jeremy Martin Kriewaldt
Jurisdiction
Australia
Judgment Date
30 September 2024
Procedural Posture
Corporations Law—indemnity / Post Trial, Application for Indemnity and Contribution
Outcome
Orders for parties to prepare proposed minutes for declarations and reference to a referee to assess costs; costs of this application reserved.
Legal Topics
Directors’ Indemnity, Contribution Between Indemnifiers, Directors and Officers Liability Insurance
Corporations Law Directors’ Indemnity Contribution Between Indemnifiers Directors and Officers Liability Insurance

Case Brief

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Parties

Bentley Capital Limited

First Plaintiff

William Matthew Johnson

Second Plaintiff

Keybridge Capital Limited

First Defendant

Australian Style Group Pty Ltd

Second Defendant

John Dean Patton

Third Defendant

Jeremy Martin Kriewaldt

Fourth Defendant

Procedural Posture

Corporations Law—indemnity / Post Trial, Application for Indemnity and Contribution

Legal Issues

  1. 1 Is Keybridge obliged to indemnify Mr Johnson for legal costs under its Constitution and Director's Deed?
  2. 2 Did Bentley's payments to Mr Johnson constitute indemnity or advances?
  3. 3 Are the legal costs covered by insurance?

Ratio Decidendi

Bentley’s payments to Mr Johnson were advances, not indemnity; neither Bentley nor Keybridge had yet indemnified, and both are obliged to indemnify Mr Johnson to the extent he is not otherwise indemnified by insurance or the other entity. Upon indemnification, the co-indemnifier is obliged to contribute equally, absent any exception such as lack of clean hands.

Court Disposition

Orders for parties to prepare proposed minutes for declarations and reference to a referee to assess costs; costs of this application reserved.

Orders

  • Within a time to be fixed, plaintiffs and first defendant to provide to Chambers an agreed minute of proposed orders or declarations (or failing agreement, competing minutes) that reflect reasons and propose questions for referee.
  • Costs of this application are reserved.