Padstow Corporation Pty Ltd v Fleming [2011] NSWSC 1337

Padstow Corporation Pty Ltd v Fleming [2011] NSWSC 1337

The terms of settlement between Padstow and Mr Fleming Senior, properly construed, constitute a covenant not to sue and not a release; therefore, Mr Fleming Junior's liability as a co-surety is not extinguished.

Jurisdiction
Australia
Judgment Date
31 October 2011
Procedural Posture
Notice of Motion / Ex Tempore Judgment
Outcome
Application dismissed with costs
Legal Topics
['discharge of Surety' 'terms of Settlement' 'covenant Not to Sue']
['equity' 'guarantee and Indemnity'] ['discharge of Surety' 'terms of Settlement' 'covenant Not to Sue']

Case Brief

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Procedural Posture

Notice of Motion / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the terms of settlement between plaintiff and first defendant operate to release the second defendant from liability as co-surety' 'Whether the terms of settlement are a covenant not to sue or a release']

Ratio Decidendi

The terms of settlement between Padstow and Mr Fleming Senior, properly construed, constitute a covenant not to sue and not a release; therefore, Mr Fleming Junior's liability as a co-surety is not extinguished.

Court Disposition

Application dismissed with costs

Orders

  • ['The balance of the notice of motion is dismissed with costs.']