Sims v Suda Ltd

[2016] FCA 1086

FEDERAL COURT OF AUSTRALIA

Sims v Suda Ltd [2016] FCA 1086

Appeal from:

Sims v Suda Ltd [2015] FCCA 2934

File number(s):

WAD 627 of 2015

Judge(s):

SIOPIS J

Date of judgment:

7 September 2016

Catchwords:

CONTRACT – indemnity clause in an executive employment contract – former director unsuccessfully brought a claim against the company of which he was formerly a director – indemnity costs awarded against the former director – whether the indemnity clause operated to indemnify the former director against the indemnity costs order.

Legislation:

Australian Consumer Law at Sch 2 to the Competition and Consumer Act 2010 (Cth) s 18

Trade Practices Act 1974 (Cth) s 52

Bankruptcy Act 1966 (Cth) s 40(1)(g)

Corporations Act 2001 (Cth) ss 199A(2), 199A(3)

Cases cited:

Sims v Suda Ltd (No 2) [2015] FCA 281

Date of hearing:

12 May 2016

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Appellant:

The Appellant appeared in person.

Counsel for the Respondent:

Mr N Ebbs

Solicitor for the Respondent:

Bennett + Co

ORDERS

WAD 627 of 2015

BETWEEN:

DOUGLAS ARTHUR SIMS

Appellant

AND:

SUDA LTD (ACN 090 987 250)

Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	7 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J:

1. This is an appeal against a decision of the Federal Circuit Court of Australia, dated 27 October 2015, which dismissed an application by the appellant, Mr Douglas Sims, to review the decision of a Registrar of that court, dated 1 October 2015.  The Registrar’s decision was to refuse to set aside a bankruptcy notice addressed to Mr Sims.

   BACKGROUND

2. On 2 October 2007, Mr Sims entered into a written contract of employment with the respondent, Suda Ltd, then known as Eastland Medical Systems Ltd.  Clause 14 of that contract was an indemnity clause.  It is this clause which is at the centre of this proceeding.

3. After Mr Sims’ resignation as a director and executive of Suda Ltd on 9 June 2009, Mr Sims has, at various times, commenced and prosecuted a number of legal proceedings against Suda Ltd in the Commonwealth courts and the courts of the State of Western Australia, including the District Court of Western Australia and the Supreme Court of Western Australia.

4. On 14 August 2014, Mr Sims commenced a proceeding (WAD 255 of 2014) in this Court against Suda Ltd. In that proceeding Mr Sims made three claims. The first claim alleged breach of contract and statutory contravention. Mr Sims alleged that Suda Ltd had breached an agreement to indemnify him in respect of his legal costs pursuant to an obligation under a settlement deed, dated 22 December 2010. Mr Sims also alleged that by breaching this contractual obligation, Suda Ltd contravened s…