Nashco Pty Ltd v Yang [2022] NSWCA 137

Nashco Pty Ltd v Yang [2022] NSWCA 137

The Guarantee, read as part of the suite of documents governing the supply arrangements, was a continuing guarantee in favour of the "Seller", defined to include the Nashco Partnership and its successors and assigns. Its wording covered all further sums from time to time owing to the Seller for goods supplied or to be supplied. In context, it contemplated that an assignee of the Nashco Partnership business might supply the goods to Grand Metal and that the respondents' promise would apply in those circumstances. Nashco was therefore entitled to rely on the Guarantee to recover the unpaid amounts for goods it supplied to Grand Metal after assignment of the business.

Jurisdiction
Australia
Judgment Date
04 August 2022
Procedural Posture
Appeal Concerning Construction of a Contract of Guarantee in Relation to a Supply Agreement and an Assigned Business / Court of Appeal From Supreme Court of New South Wales, Equity – Commercial List, [2021] NSWSC 1005; Appeal Allowed
Outcome
Appeal allowed.
Legal Topics
['construction of Guarantee' 'assignment of Business' 'successors and Assigns' 'continuing Guarantee' 'liability of Director Guarantors' 'supply of Goods on Credit']
['contract Law' 'guarantees' 'commercial Law'] ['construction of Guarantee' 'assignment of Business' 'successors and Assigns' 'continuing Guarantee' 'liability of Director Guarantors' 'supply of Goods on Credit']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning Construction of a Contract of Guarantee in Relation to a Supply Agreement and an Assigned Business / Court of Appeal From Supreme Court of New South Wales, Equity – Commercial List, [2021] NSWSC 1005; Appeal Allowed

Legal Issues

  1. 1 ['Whether the primary judge erred in failing to find that the benefit of the Guarantee included future sums of money owing by Grand Metal Pty Ltd to Nashco Pty Ltd as successor or assignee of AG Brewer and KM Brewer in respect of the continuing supply of goods.' 'Whether the words "and its successors and assigns" in the definition of "Seller" permitted Nashco Pty Ltd to rely on the Guarantee for goods supplied after assignment of the Nashco Partnership business.']

Ratio Decidendi

The Guarantee, read as part of the suite of documents governing the supply arrangements, was a continuing guarantee in favour of the "Seller", defined to include the Nashco Partnership and its successors and assigns. Its wording covered all further sums from time to time owing to the Seller for goods supplied or to be supplied. In context, it contemplated that an assignee of the Nashco Partnership business might supply the goods to Grand Metal and that the respondents' promise would apply in those circumstances. Nashco was therefore entitled to rely on the Guarantee to recover the unpaid amounts for goods it supplied to Grand Metal after assignment of the business.

Court Disposition

Appeal allowed.

Orders

  • ['Set aside Orders 2, 3, 5 and 6 made by the primary judge on 25 August 2021.' 'Judgment on the cross-claim against the first, second, third, fourth and fifth cross-defendants for $979,716.47 (including interest of $36,022.22), to take effect from 25 August 2021.' "Order that the first, second, third, fourth and...