Kintsu v Peninsular Group [1999] NSWSC 221

Kintsu v Peninsular Group [1999] NSWSC 221

On the construction of the Deed, given Default Notices were served and all payment obligations became immediately payable, the indemnity and guarantee provisions allowed recovery from the relevant defendants without further notice, and liability was not limited to individual instalments as they fell due.

Parties
Plaintiff: Kintsu Co Limited; First Defendant: The Peninsular Group Limited; Second Defendant: Peninsular Group Australia Pty Limited; Third Defendant: Australian MacFarms Pty Limited; Fourth Defendant: Hutt Rental Holdings Pty Limited; Fifth Defendant: Eastern Link Pty Limited; Sixth Defendant: Brian John Finlay; Seventh Defendant: Winson Manchiu Woo
Jurisdiction
Australia
Judgment Date
24 March 1999
Procedural Posture
Commercial / Summary Judgment
Outcome
Summary judgment granted for plaintiff against fourth, fifth, sixth, and seventh defendants.
Legal Topics
Summary Judgment, Guarantee and Indemnity, Construction of Contract, Accelerated Payment Clauses
Contract Law Commercial Law Summary Judgment Guarantee and Indemnity Construction of Contract Accelerated Payment Clauses

Case Brief

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Parties

Kintsu Co Limited

Plaintiff

The Peninsular Group Limited

First Defendant

Peninsular Group Australia Pty Limited

Second Defendant

Australian MacFarms Pty Limited

Third Defendant

Hutt Rental Holdings Pty Limited

Fourth Defendant

Eastern Link Pty Limited

Fifth Defendant

Brian John Finlay

Sixth Defendant

Winson Manchiu Woo

Seventh Defendant

Procedural Posture

Commercial / Summary Judgment

Legal Issues

  1. 1 Whether a demand is required before liability attaches to guarantors under clause 3.9.3(b) of the Deed
  2. 2 Whether the filing and serving of the Summons constitutes a valid demand under the guarantee provisions
  3. 3 Whether amounts due are limited to instalments as they fall due or may be accelerated after Default Notices

Ratio Decidendi

On the construction of the Deed, given Default Notices were served and all payment obligations became immediately payable, the indemnity and guarantee provisions allowed recovery from the relevant defendants without further notice, and liability was not limited to individual instalments as they fell due.

Court Disposition

Summary judgment granted for plaintiff against fourth, fifth, sixth, and seventh defendants.

Orders

  • Judgment for the plaintiff against the fourth, fifth, sixth, and seventh defendants in the sum of $156,132.50, inclusive of interest.
  • Judgment for the plaintiff against the fourth, fifth, sixth, and seventh defendants in the sum of $780,663.50, inclusive of interest.