Jiona Investments Pty Ltd & Ors v Medihelp General Practice Pty Limited

[2010] QCA 99

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › General contractual principles
3. › Construction and interpretation of contracts
4. › Indemnity clauses
5. › Construction of settlement consent provisions
6. › Whether indemnified party obliged to consult with and obtain consent of indemnifier before settling claim
7. › Principles of strictissimi juris applicable to indemnity clauses
1. Contract
2. › General contractual principles
3. › Construction and interpretation of contracts
4. › Indemnity clauses
5. › Consequences of non-compliance with consent requirement
6. › Whether failure to obtain consent constitutes breach of condition precedent to indemnifier's obligation
1. Contract
2. › General contractual principles
3. › Indemnity
4. › Nature of indemnity obligation
5. › Whether liability under indemnity crystallises before contingent liability ceases to be contingent
1. Practice and Procedure
2. › Judgments and orders
3. › Default judgment
4. › Third party proceedings
5. › Leave to appear and defend
6. › Whether primary judge erred in refusing leave to appear where arguable defence existed
7. › Whether failure to file notice of intention to defend justified refusal of leave
8. › Uniform Civil Procedure Rules 1999 (Qld), rr 135, 137, 138, 197, 198, 658

Quick Take

A settlement consent clause in an indemnity deed that requires 'the party purporting to reach a settlement' to obtain the indemnifier's consent is reasonably arguable as binding all indemnified parties (not just the indemnifier and one other party), and failure to obtain such consent is arguable as a breach of a condition precedent to the indemnifier's obligation. A party with an arguable defence on the merits should not be denied leave to appear merely because of a failure to file a notice of intention to defend, absent disentitling factors such as delay or prejudice.