Waterco Limited v Tarong Pool Care Pty Ltd [2019] NSWSC 1425

Waterco Limited v Tarong Pool Care Pty Ltd [2019] NSWSC 1425

Waterco was entitled to judgment against Mr Weekes because the guarantees made him liable for Tarong Pool Care's obligations, the certificates signed by Waterco's director were contractually conclusive of the amounts owing, and no argument was advanced for why effect should not be given to those certificates. The adjournment was refused because there was no evidence of a defence and no evidence that a bankruptcy order had been made. Leave to discontinue the balance of the claim was refused because there was no evidence supporting the loss of bargain damages claim and Waterco should not both obtain an urgent final hearing and retain a right to bring further claims arising out of the same...

Jurisdiction
Australia
Judgment Date
16 October 2019
Procedural Posture
Equity Commercial List; Claim to Enforce Guarantee and Indemnity / Final Hearing Against the Second Defendant; Application for Adjournment Refused
Outcome
Judgment for the plaintiff against the second defendant for $190,386.91; costs ordered against the second defendant; balance of proceedings against the second defendant dismissed.
Legal Topics
['enforcement of Guarantee' 'conclusive Certificates of Indebtedness' 'franchise Deed and Licence to Occupy' 'adjournment' 'bankruptcy Petition' 'discontinuance']
['guarantee and Indemnity' 'civil Procedure' 'commercial Law'] ['enforcement of Guarantee' 'conclusive Certificates of Indebtedness' 'franchise Deed and Licence to Occupy' 'adjournment' 'bankruptcy Petition' 'discontinuance']

Case Brief

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Procedural Posture

Equity Commercial List; Claim to Enforce Guarantee and Indemnity / Final Hearing Against the Second Defendant; Application for Adjournment Refused

Legal Issues

  1. 1 ['Whether Waterco was entitled to judgment against Mr Weekes under deeds of guarantee and indemnity and guarantees in licences to occupy for amounts certified as owing by Tarong Pool Care.' "Whether Mr Weekes' filing of a debtor's petition seeking to be made bankrupt warranted an adjournment." 'Whether Waterco should be granted leave to discontinue the balance of its claim against Mr Weekes, including a claim for loss of bargain damages.']

Ratio Decidendi

Waterco was entitled to judgment against Mr Weekes because the guarantees made him liable for Tarong Pool Care's obligations, the certificates signed by Waterco's director were contractually conclusive of the amounts owing, and no argument was advanced for why effect should not be given to those certificates. The adjournment was refused because there was no evidence of a defence and no evidence that a bankruptcy order had been made. Leave to discontinue the balance of the claim was refused because there was no evidence supporting the loss of bargain damages claim and Waterco should not both obtain an urgent final hearing and retain a right to bring further claims arising out of the same...

Court Disposition

Judgment for the plaintiff against the second defendant for $190,386.91; costs ordered against the second defendant; balance of proceedings against the second defendant dismissed.

Orders

  • ['Judgment for the plaintiff against the second defendant in the amount of $190,386.91.' "Order that the second defendant pay the plaintiff's costs of the proceedings against the second defendant." 'The proceedings against the second defendant will otherwise be dismissed.' 'Direct that these orders may be taken out...