Clarke & Walker Pty Ltd v Thew [1967] HCA 28

Clarke & Walker Pty Ltd v Thew [1967] HCA 28

A written demand for payment under s. 222(2)(a) Companies Act, 1961 (NSW), not followed by the institution of winding-up proceedings within the guarantee period, does not constitute the taking of 'proceedings' for the debt and thus does not discharge the respondent from the guarantee.

Jurisdiction
Australia
Procedural Posture
Civil Appeal / High Court Appeal From Court of Appeal
Outcome
Appeal allowed
Legal Topics
['guarantee Interpretation' "meaning of 'proceedings' Under a Contract" "creditor's Rights During Guarantee Period"]
['contract Law' 'guarantee'] ['guarantee Interpretation' "meaning of 'proceedings' Under a Contract" "creditor's Rights During Guarantee Period"]

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Procedural Posture

Civil Appeal / High Court Appeal From Court of Appeal

Legal Issues

  1. 1 ["Does serving a formal demand for payment constitute 'taking proceedings' under the meaning of the guarantee?" "Has the appellant's action discharged the respondent from the guarantee?"]

Ratio Decidendi

A written demand for payment under s. 222(2)(a) Companies Act, 1961 (NSW), not followed by the institution of winding-up proceedings within the guarantee period, does not constitute the taking of 'proceedings' for the debt and thus does not discharge the respondent from the guarantee.

Court Disposition

Appeal allowed

Orders

  • ['Order of the Court of Appeal discharged' 'Order that the appeal to the Court of Appeal be dismissed with costs' 'Appellant allowed costs']