Recent Cases

Hopper v D J Sincock Pty Ltd [2021] NSWCA 305 (13 December 2021) (Brereton and McCallum JJA, Simpson AJA)


Catchwords:


GUARANTEE AND INDEMNITY – Guarantor – Right to indemnity – Refinance agreement entered into by corporate agent of partnership comprised of three companies – Respective directors as guarantors – One partner seeking to leave the partnership – Corporate agent defaults – Settlement negotiated by one guarantor – No express right of indemnity of guarantors – Whether implied contractual right of indemnity inferable – Whether principal debtor requested guarantors to give guarantee – Whether request inferable from circumstances of case – Majority of directors of corporate agent and majority of partners in partnership aware guarantee would be provided and acquiesced to such a course – Commercial circumstances evinced request for guarantee so business could continue to operate – Guarantee given in same document that established debt obligation – Express request for guarantee by creditor irrelevant – Right to indemnity established – Appeal allowed

GUARANTEE AND INDEMNITY – Indemnities – Construction – Whether right to indemnity excluded by inconsistent express or implied agreement or otherwise estopped – Assurances by one partner to departing partner regarding freedom from liability not made with knowledge or authority of third partner – Departing partner did not consider concluded agreement to have been reached – No inconsistent agreement – No estoppel

PARTNERSHIPS AND JOINT VENTURES – Rights and duties between partners – Implied authority to bind other partners by representations – Representations of freedom from liability made to departing partner – Representations not made to third party – Representations not made in ordinary course of business of partnership – No authority

GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – Contribution before payment made – Partners liable to contribute in proportion to their interests in partnership – Declaratory relief granted