Street, S. & Ors v Retravision (NSW) Pty Ltd & Ors [1995] FCA 247

Street, S. & Ors v Retravision (NSW) Pty Ltd & Ors [1995] FCA 247

The applicants, as guarantors, are not entitled to declarations rendering the respondents (including the creditor, Retravision) jointly and severally liable under s. 592 for the company’s debts, nor are they entitled to contribution or indemnity, because liabilities under s. 592 are primary and distinct from liabilities as guarantor, and the creditor cannot be liable to itself by operation of s. 592. There is no common obligation or coordinate liability as required for the doctrine of contribution or indemnity to operate between these parties.

Jurisdiction
Australia
Judgment Date
11 April 1995
Procedural Posture
Civil Application / Determination of Separate Question Following Application and Prior Supreme Court Judgment
Outcome
Application for declarations dismissed; question for separate determination answered in the negative.
Legal Topics
['joint and Several Liability' 'doctrine of Contribution' 'guarantees' 'liability Under S. 592 of Corporations Law' 'right to Indemnity']
['corporations' 'equity'] ['joint and Several Liability' 'doctrine of Contribution' 'guarantees' 'liability Under S. 592 of Corporations Law' 'right to Indemnity']

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Procedural Posture

Civil Application / Determination of Separate Question Following Application and Prior Supreme Court Judgment

Legal Issues

  1. 1 ['Whether the applicants (guarantors) are entitled to declarations that the respondents and the fourth applicant are jointly and severally liable under s. 592 of the Corporations Law for the company’s debt to Retravision.' 'Whether the applicants have a right of contribution against the respondents in respect of those debts.' 'Whether the respondents are liable to indemnify the applicants for that sum.']

Ratio Decidendi

The applicants, as guarantors, are not entitled to declarations rendering the respondents (including the creditor, Retravision) jointly and severally liable under s. 592 for the company’s debts, nor are they entitled to contribution or indemnity, because liabilities under s. 592 are primary and distinct from liabilities as guarantor, and the creditor cannot be liable to itself by operation of s. 592. There is no common obligation or coordinate liability as required for the doctrine of contribution or indemnity to operate between these parties.

Court Disposition

Application for declarations dismissed; question for separate determination answered in the negative.

Orders

  • ["There be answered in the negative the question for separate determination pursuant to the order made on 2 March 1995: 'Upon the admission by the First and Second Respondents solely for this purpose of the facts alleged in the Amended Statement of Claim and upon the evidence being Exhibits A and B and upon the...