Ulladulla Creative Images Pty Ltd ACN 089 098 073 v Ian Tibbles [2021] NSWCA 289

Ulladulla Creative Images Pty Ltd ACN 089 098 073 v Ian Tibbles [2021] NSWCA 289

Although the primary judge erred by referring to parties' subjective intentions and certain inadmissible evidence in construing clause 15.2, the proper construction of the clause, considering its language and commercial context, was that it applied to all moneys received from QBE in respect of loss arising out of the fire, including the payment of $380,000 for uninsured trading losses. Therefore, the obligation in clause 15.2 was engaged.

Parties
Appellant: Ulladulla Creative Images Pty Ltd; First Respondent: Ian Tibbles; Second Respondent: Debbie Tibbles
Jurisdiction
Australia
Judgment Date
29 November 2021
Procedural Posture
Civil Appeal / Judgment on Appeal in the Court of Appeal From District Court Decision
Outcome
Appeal dismissed.
Legal Topics
Share Sale Agreements, Interpretation of Contracts, Insurance Claims, Recovery of Uninsured Losses, Contract Construction, Shareholder Rights
Contract Law Insurance Law Commercial Law Share Sale Agreements Interpretation of Contracts Insurance Claims Recovery of Uninsured Losses Contract Construction +1 more

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Parties

Ulladulla Creative Images Pty Ltd

Appellant

Ian Tibbles

First Respondent

Debbie Tibbles

Second Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal in the Court of Appeal From District Court Decision

Legal Issues

  1. 1 Whether the primary judge erred in relying on evidence of a solicitor about conversations between parties in construing contractual clauses.
  2. 2 Whether activities of a claims agent in seeking recovery of uninsured losses prior to the agreement could be considered without evidence respondents were aware.
  3. 3 Whether the primary judge erred in concluding that a contractual clause was engaged by payment received for uninsured losses.

Ratio Decidendi

Although the primary judge erred by referring to parties' subjective intentions and certain inadmissible evidence in construing clause 15.2, the proper construction of the clause, considering its language and commercial context, was that it applied to all moneys received from QBE in respect of loss arising out of the fire, including the payment of $380,000 for uninsured trading losses. Therefore, the obligation in clause 15.2 was engaged.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • The Appellant pay the Respondents' costs of the appeal.