WATERLOO HOLDINGS PTY LTD v TIMSO [1997] NSWCA 335

WATERLOO HOLDINGS PTY LTD v TIMSO [1997] NSWCA 335

The Deed’s indemnity clause did not oblige the respondent to pay a sum certain because, in the absence of evidence that the appellant suffered any actual loss as a result of undisclosed liabilities, no right to indemnity arises. Consequently, the claim and appeal must fail.

Parties
Appellant: Waterloo Holdings Pty Ltd; Respondent: George Timso
Jurisdiction
Australia
Judgment Date
28 August 1997
Procedural Posture
Appeal / Court of Appeal Decision on Appeal From Supreme Court Dismissing Stated Case From Local Court
Outcome
Appeal dismissed with costs.
Legal Topics
Guarantee and Indemnity, Interpretation of Indemnity Clauses, Requirements for Loss Under Indemnity, Appeal by Stated Case, Assessment of Damages for Misrepresentation
Contracts Practice and Procedure Guarantee and Indemnity Interpretation of Indemnity Clauses Requirements for Loss Under Indemnity Appeal by Stated Case Assessment of Damages for Misrepresentation

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 5 Authorities cited 15 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Waterloo Holdings Pty Ltd

Appellant

George Timso

Respondent

Procedural Posture

Appeal / Court of Appeal Decision on Appeal From Supreme Court Dismissing Stated Case From Local Court

Legal Issues

  1. 1 Whether the appellant was entitled to an indemnity under the Deed despite absence of evidence of actual loss
  2. 2 Proper construction of the indemnity clause in the Deed—whether it created liability to pay a sum certain or only on proof of loss
  3. 3 Whether the court could or should substitute its own finding of loss or damages where the magistrate made no finding

Ratio Decidendi

The Deed’s indemnity clause did not oblige the respondent to pay a sum certain because, in the absence of evidence that the appellant suffered any actual loss as a result of undisclosed liabilities, no right to indemnity arises. Consequently, the claim and appeal must fail.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.