Professional Investment Services Pty Ltd v Dolan - [2015] QCATA 35

CITATION:

Professional Investment Services Pty Ltd v Dolan [2015] QCATA 35

PARTIES:	Professional Investment Services Pty Ltd (Appellant)
v
Julie Dolan (Respondent)

APPLICATION NUMBER:

APL514-14

MATTER TYPE:

Appeals

HEARING DATE:

6 and 9 March 2015

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

12 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

MINOR CIVIL DISPUTE - APPLICATION FOR LEAVE TO APPEAL – construction of agreement – whether indemnity clause void for uncertainty – whether arguable error shown – where no such error shown – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 ss 32, 142
Androvitsaneas v Members First Broker Network[2013] VSCA 212

Associated Japanese Bank (International) Ltd v Credit du Nord SA [1989] 1 WLR 255

Azzopardiv Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bhasin v Hrynew [2014] SCC 71

Biotechnology Australia Pty Ltd v Pace (1989) 15 NSWLR 130
Custom Credit Corporation Ltd v Gray [1992] 1 VR 540

Fidelity & Deposit Co. of Maryland v. Bristol Steel and Ironworks, Inc. 722 F.2d 1160 (4^th Cir. 1983)

Financial Ombudsman Services Limited v Pioneer Credit Acquisition Services Pty Ltd [2014] VSC 172

Fox v Percy (2003) 214 CLR 118

Lend Lease Financial Planning Limited v Southcap Pty Ltd [1998] QCA 117
Meehan v Jones (1982) 149 CLR 571

Mercantile Credits Ltd v Harry [1969] 2 NSWR 248

Nudgee Bakery Pty Ltd’s Agreement, Re [1971] Qd R 24 Pickering v McArthur [2005] QCA 294

S v Crimes Compensation Tribunal [1998] 1 VR 83
Sammimi v Mahboudi [2014] QCATA 204
Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2014] WASC 444

Snell v Morgan [2011] QCATA 316

Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (2010) 41 WAR 318

TransAmerica Ins. Co. v. Boomfield 401 F.2d 357 (6^th Cir. 1968).

Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 437

W (an infant), In re [1971] AC 682

Yam Seng PTE Limited v International Trade Corp Limited [2013] 1 Lloyd's Rep 526
York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

At all material times the appellant (“Professional”) carried on business as a duly licensed financial adviser at Corporate Centre One, Bundall Road and Slatyer Avenue, Bundall, Queensland.
At all material times the respondent (“Dolan”), of Tallebudgera, was an “authorised representative” of Professional, pursuant to an agreement made between the parties on 8 December 2003, in accordance with the Corporations Act 2001.
It was a term of the said agreement[1] that:
You [Dolan] agree to indemnify us [Professional] in appropriate circumstances from any claims made against us or any losses suffered by us (including the payment of your portion of any insurance excess) as a result…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCATA 35
Decision Date: 12 March 2015

CaseChat Overview and Summary

The case involves Professional Investment Services Pty Ltd as the appellant and Dolan as the respondent. The dispute originated from a minor civil matter where the primary issue was the interpretation of a contractual indemnity clause in an agreement between the parties. The dispute reached the Supreme Court of New South Wales, which was asked to determine whether the clause was void for uncertainty and whether there was an arguable error in the lower court's decision that warranted an appeal.

The court was required to address two key legal issues. First, it had to interpret the indemnity clause in question to determine whether it was so uncertain as to render it void. Second, it had to assess whether there was an arguable error in the lower court's interpretation of the clause that justified granting leave to appeal to the Supreme Court. In examining these issues, the court considered the language of the clause, the context in which it was used, and the principles of contract law applicable to such clauses.

In its reasoning, the court found that the indemnity clause was not void for uncertainty. It was clear in its terms and the obligations it imposed on the parties. The court also concluded that there was no arguable error in the lower court's interpretation of the clause. The reasoning relied on established contract law principles and the court's assessment of the clause's clarity and enforceability. Given these findings, the court determined that the respondent had not demonstrated that there was an arguable error warranting leave to appeal.

As a result, the Supreme Court refused the appellant's application for leave to appeal, thereby upholding the lower court's decision. The court's refusal of leave to appeal meant that the interpretation of the indemnity clause as decided by the lower court would stand, and no further appeal would be permitted on the matter.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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