27 Mar 2023
LMCHB LTD v BULLER COAL LTD [2023] NZHC 633
- Citation
- [2023] NZHC 633
- Court
- High Court
Clause 3.10 of the Amendment Deed operates to suspend the performance payment while the specified royalties (if any) continue to be paid; the Deed of Guarantee secures amounts arising under cl 3.4 of the Agreement and, because a guarantor's liability is secondary, there is no Guaranteed Money or event of default when the principal obligation is lawfully deferred by cl 3.10; s 12 CCLA and implication arguments fail; the plaintiff's failure to pursue the guarantee in the original litigation constituted an unjustified abuse of process.