SIF Holdings Pty Ltd v CRC Gosford Pty Ltd

[2021] NSWCA 174

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Trusts and trustees
3. › Express trusts
4. › Construction of trust deed
5. › Whether trust constitution confers discretion on trustee to determine distributable income
6. › Whether trustee exercised discretion
1. Contract
2. › Construction
3. › Commercial contracts
4. › Trust deed as commercial instrument
5. › Construction by reference to text, context and purpose
6. › Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
1. Equity
2. › Subrogation
3. › Requirements
4. › Whether indemnity is true indemnity against loss or promise to pay on contingency
5. › Distinction between indemnity against loss and contingent payment obligation
1. Equity
2. › Subrogation
3. › Rights of subrogated party
4. › Scope of subrogation limited to rights which diminish loss
5. › Whether subrogation extends to right to receive Withdrawal Amount

Quick Take

A clause providing for 'top-up' payments to cover shortfalls in structured finance transactions, without reference to 'loss', may be characterised as a contingent payment obligation rather than a true indemnity, thereby precluding subrogation rights.