BI (Contracting) Pty Ltd v AW Baulderstone Holdings Pty Ltd

The dispute in *BI (Contracting) Pty Ltd v AW Baulderstone Holdings Pty Ltd* concerned the construction of an indemnity clause within a contract. The appeal was heard by the Court of Appeal of New South Wales, with Beazley JA, Tobias JA, and Bell J presiding.

The primary legal issues before the court were: first, the proper construction of the indemnity clause, including whether the principles established in *Canada Steamship Lines Ltd v The King* applied in Australia; and second, whether the trial judge erred in drawing a *Jones v Dunkel* inference regarding the existence of a contract and its alleged terms, given that the written contract itself was not produced by one of the parties.

The Court of Appeal affirmed the trial judge's findings. Regarding the indemnity clause, the court held that it should be construed strictly, considering the contract as a whole, and any ambiguity should be resolved against the party seeking to rely on it (the *proferens*). The court also confirmed that the *Canada Steamship* principles are applicable in Australia. On the evidentiary issue, the court found no error in the trial judge's drawing of a *Jones v Dunkel* inference, accepting the oral evidence presented by witnesses as to the existence and terms of the contract, despite the absence of the written document.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.