Todbern Pty Ltd v RB Kerr (Group) Pty Ltd Super Centre Development Corporation Pty Ltd v RB Kerr (Group) Pty Ltd

The New South Wales Court of Appeal considered a dispute between Todbern Pty Ltd and Super Centre Development Corporation Pty Ltd (the appellants) and RB Kerr (Group) Pty Ltd (the respondent). The core of the dispute concerned the interpretation and enforceability of a deed of covenant and indemnity entered into between the parties.

The primary legal issue before the Court was whether the respondent was entitled to enforce the deed of covenant and indemnity against the appellants, notwithstanding that the respondent was not a party to the original agreement that the deed sought to indemnify. The Court was required to determine the principles of privity of contract and whether they applied to prevent the respondent from enforcing the deed.

The Court of Appeal, in dismissing the appeal, held that the respondent was entitled to enforce the deed. The Court reasoned that the deed was a deed poll, which, under New South Wales law, could be enforced by a person who was not a party to the deed but for whose benefit it was intended. The Court found that the deed was clearly intended to benefit the respondent, as it contained an express covenant by the appellants to indemnify the respondent against certain liabilities. The Court distinguished the present case from situations where a deed is merely a contract between two parties for the benefit of a third, which would typically be subject to the rule in *Willesford v Watson* (1873) LR 8 Ch App 479.

The appeal was dismissed.