FEDERAL COURT OF AUSTRALIA Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635 File number: SAD 90 of 2016 Judge: BESANKO J Date of judgment: 2 June 2016 Catchwords: PRACTICE AND PROCEDURE – application for an interlocutory injunction to restrain the respondent from having recourse to a bank guarantee – whether bank guarantee should be construed as a performance bond by way of bank guarantee or as an ordinary commercial guarantee – construction of the bank guarantee – whether there is a serious question to be tried – whether balance of convenience favours granting injunction Legislation: Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010) (Cth) ss 18, 20 Corporations Act 2001 (Cth) Cases cited: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd and Others (2014) 251 CLR 640; [2014] HCA 7 Fabtech Australia Pty Ltd v Laing O'Rourke Australia Construction Pty Ltd [2015] FCA 1371 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and Another [2015] HCA 37; (2015) 325 ALR 188 Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 Wood Hall Limited v The Pipeline Authority and Another (1979) 141 CLR 443 Date of hearing: 26 April 2016 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 46 Counsel for the Applicant: Mr R Whitington QC with Mr N Floreani Solicitor for the Applicant: Fenwick Elliott Grace Counsel for the Respondent: Mr M Hoffman QC Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS SAD 90 of 2016 BETWEEN: OTTOWAY ENGINEERING PTY LTD (ACN 125 531 428) Applicant AND: WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Respondent JUDGE: BESANKO J DATE OF ORDER: 2 June 2016 THE COURT ORDERS THAT: 1. Subject to the usual undertaking as to damages, the injunction made on 30 March 2016 (paragraph 1) be extended until trial or until further order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: Introduction 1 This is an application by Ottoway Engineering Pty Ltd ("Ottoway") for an interlocutory injunction restraining the Westpac Banking Corporation ("Westpac") until trial from taking any further steps to demand or obtain payment in respect of a bank guarantee given to Westpac by Ottoway's banker, the National Australia Bank Limited ("National Bank"). On 12 June 2015, the National Bank executed a bank guarantee in which Westpac was named as the beneficiary and Ottoway was named as the customer ("the Guarantee"). The amount of the Guarantee is one million dollars. On 29 March 2016, Mr Terry Lovelock, who is a senior account manager employed by Westpac, made a demand under the Guarantee on behalf of Westpac on the National Bank for the payment of $858,158.96 as at 29 March 2016 plus interest of $105.08 per day thereafter. On 30 March 2016, I made an interim order restraining Westpac from calling upon and taking any further steps to demand or obtain payment in respect of the Guarantee. The issue now before the Court is whether an interlocutory injunction should be granted until trial. 2 The test to be applied in determining whether an interlocutory injunction should be granted is well-established. The applicant must establish a prima facie case in that it must show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. For convenience, I will refer to this as a prima facie case. The Court must consider the balance of convenience, including whether damages will be an adequate remedy (Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 at 68-69 [19] per Gleeson CJ and Crennan J, and at 81-84 [65]-[72] per Gummow and Hayne JJ). As the Full Court of this Court made clear in Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 at 261 [67], the strength of the applicant's case is not considered in isolation from the balance of convenience. The strength of the parties' substantive cases will often be an important consideration to be weighed in the balance. On the balance of convenience, I can take into account the effect on Ottoway's parent company even though it is a separate legal entity (Fabtech Australia Pty Ltd v Laing O'Rourke Australia Construction Pty Ltd [2015] FCA 1371 at [47]). 3 The relief sought by Ottoway is set out in its Amended Originating Application. Ottoway has not to this point filed a Statement of Claim. In its Amended Originating Application, Ottoway seeks declarations against Westpac and the nature of the declarations depend on whether the Guarantee is construed as a performance bond by way of a bank guarantee or as what Ottoway calls an ordinary commercial guarantee. 4 If it is construed as a performance bond, then Ottoway seeks a declaration which has the following features. First, that the performance bond was procured in circumstances of fraud by Bluenergy CMC Pty Ltd ("Bluenergy"). Secondly, for Westpac to call upon the Guarantee would be contrary to the agreement between Bluenergy and Ottoway for the provision of the Guarantee. Thirdly, for Westpac to call on the Guarantee would be unconscionable and contrary to s 20 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)), having regard to the circumstances in which it was procured. Fourthly, that the agreement to provide the Guarantee was procured by misleading or deceptive conduct on the part of Bluenergy in contravention of s 18 of the Australian Consumer Law. Finally, Westpac cannot call on the Guarantee because it was given on the basis of an agreement which has been abandoned. 5 If the Guarantee is to be construed as an ordinary commercial guarantee, then the declaration sought by Ottoway has the following features. First, the Guarantee only extends to a Bill Facility granted by Westpac to Bluenergy to the extent of a failure of Ottoway to repay Bluenergy the amount of an advance of $1,735,000 by Bluenergy to Ottoway. In the alternative, if the Guarantee guarantees repayment to Westpac of any and all financial accommodation granted by it to Bluenergy, then the Guarantee should be set aside by reason of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law or unconscionable conduct contrary to s 20 of the Australian Consumer Law. 6 Ottoway also seeks orders designed to prevent recourse to the Guarantee and should that relief not be granted, an order for damages or equitable compensation against Westpac for misleading or deceptive conduct or unconscionable conduct contrary to s 18 or s 20 of the Australia Consumer Law, and/or equity in having recourse to the Guarantee. The Guarantee 7 The Guarantee recites that Westpac, at the request of Ottoway and the National Bank, has agreed to accept it "in connection with the Agreement" and that, in consideration of that, the National Bank undertakes to pay Westpac an amount or amounts not exceeding the amount in total. As I have said, the amount in total is one million dollars. 8 The Agreement is identified in the Guarantee as follows: PROJECT MOBILIZATION COST PLANT, EQUIPMENT'S AND RECOURSE [sic RESOURCES] FOR CONTRACT BETWEEN OTTOWAY ENGINEERING PTY LTD ABN 70 125 531 428 AND BLUENERGY CMC PTY LTD ABN 33 160 063 187 EXECUTED ON THE 21ST OF AUGUST 2014 FOR THE PROVISION OF MECHANICAL & PIPING INSTALLATION & COMMISSIONING WORKS RELATING TO DEWATERING BUILDINGS 313 AND 314 CONVEYOR REPAIRS. THIS BANK GUARANTEE ISSUED TO SECURE THE LENDING OBLIGATIONS OF BLUENERGY CMC PTY LTD TO WESTPAC BANKING CORPORATION. 9 Under the Guarantee, Westpac has the right to payment of the amount (or part thereof) by the National Bank upon provision of an unconditional written demand, without reference to the customer, despite any notice by Ottoway to the National Bank not to pay Westpac, irrespective of the performance or non-performance by Ottoway or Westpac of the Agreement in any respect, with no obligation on the National Bank to inquire as to the performance or non-performance of the Agreement in any respect by Ottoway or Westpac and with no obligation on the National Bank to inquire as to the correctness or validity of an unconditional written demand made by Westpac pursuant to the Guarantee. 10 It will be necessary to set out the facts established at this stage in some detail, but at this point it is worth noting the following features of the Guarantee. First, the Agreement in the Guarantee in fact identifies two matters, being first, the costs associated with a building contract between Ottoway and Bluenergy being project mobilisation cost plant, equipment and resources and second, obligations between Bluenergy and Westpac being obligations owed to Westpac by Bluenergy. Secondly, although the obligations of Bluenergy to Westpac are referred to as "lending" obligations, it seems clear from the surrounding circumstances that I will identify that the obligations are in fact "borrowing" obligations. In other words, Bluenergy borrowed money from Westpac and was under an obligation to repay the money. Thirdly, aside from the effect which is given to the Guarantee, although Ottoway had obligations under the building contract with Bluenergy, it did not have any borrowing obligations to Westpac. 11 The competing cases, briefly expressed, are as follows. It is common ground, at least for the purposes of this application, that Ottoway and Bluenergy entered into a building contract for the performance of building work by Ottoway for Bluenergy. That is the building contract referred to in the Guarantee. Ottoway and Bluenergy agreed that Bluenergy would make an advance payment to Ottoway which the latter would "repay" by deductions being made from the progress payments to which Ottoway was otherwise entitled to under the building contract. Bluenergy borrowed monies under a Bill Facility Agreement with Westpac in order to make the advance payment to Ottoway. 12 Ottoway claims that it has repaid the advance payment to Bluenergy. However, Bluenergy, which is now in liquidation, has not paid (or fully paid) the monies it owes to Westpac under the Bill Facility Agreement. 13 Westpac's case is that by the Guarantee issued by the National Bank at the request of Ottoway, the repayment of monies owed by Bluenergy to Westpac is guaranteed. 14 Ottoway's case has two limbs. First, the building contract referred to in the Guarantee was replaced by another agreement between Ottoway and Bluenergy which is not referred to in the Guarantee. That means that the Guarantee is ineffective. Secondly, the Guarantee only ever guaranteed Ottoway's repayment obligations to Bluenergy and those obligations have been met. 15 Ottoway submitted that the Guarantee was in the nature of a performance bond whereby it gave security for the performance of its obligations to Bluenergy. The bond was given to Bluenergy's banker, rather than Bluenergy itself, but in all other respects, the Guarantee was similar to the type of performance bond considered by the High Court in Wood Hall Limited v The Pipeline Authority and Another (1979) 141 CLR 443. The Facts 16 The facts set out below are based on the evidence which is before the Court at this stage. 17 In 2014, Sino Iron Pty Ltd as owner and principal, and Bluenergy as head contractor, entered into a contract for Bluenergy to perform mechanical and piping installation and commissioning works in relation to two dewatering buildings (313 and 314) located at Cape Preston in the Pilbara region in Western Australia. There was no provision in this contract for Sino Iron to make an advance payment to Bluenergy to cover the cost of site mobilisation. 18 On 21 August 2014, Bluenergy and Ottoway entered into a subcontract whereby Ottoway agreed to perform mechanical and piping installation and commissioning works in relation to two dewatering buildings (313 and 314) located at Cape Preston. The price under the subcontract was $17,350,000. It was agreed between Bluenergy and Ottoway that Bluenergy would make an advance payment to Ottoway of 10% of the contract price seven days after the subcontract. That payment was provided to enable Ottoway to meet the cost of mobilising and establishing itself on the project site and was to be repaid by Ottoway mobilising and completing the works under the subcontract. Ottoway was to provide a bank guarantee to support the obligation to complete the works under the subcontract and to repay the advance payment. There was nothing in the subcontract about the advance payment. That was a matter which was the subject of a separate agreement. 19 The repayment by Ottoway of the advance payment was to take place over time and involved Bluenergy retaining 10% of Ottoway's monthly progress claims. The Guarantee would be reduced from time to time to recognise the reduced value of the advance in order to free up Ottoway's banking facilities. 20 Ottoway mobilised onto the site on or around 25 August 2014. On 18 September 2014, the National Bank issued a bank guarantee in favour of Westpac in the same terms as the Guarantee, save that the amount was $1,735,000. I will refer to this guarantee as the earlier guarantee. There is evidence before me that Westpac insisted on that part of the description of the Agreement which referred to Bluenergy's obligations to Westpac. This requirement of Westpac was conveyed to Ottoway by Bluenergy. Mr Young, who is the managing director of Ottoway, said that his understanding was that the earlier guarantee was of Ottoway's obligation to complete the works and "earn out" the value of the advance payment, or if Ottoway did not complete the works, repay the outstanding balance of the advance payment. He did not understand it to be a guarantee to Westpac by Ottoway that Bluenergy would repay the amounts it (i.e., Bluenergy) owed to Westpac. Mr Young gave evidence in his second affidavit confirming his understanding of the earlier guarantee and the Guarantee. He outlined the steps he would have taken (and did not) had he thought that Ottoway was entering into an ordinary commercial guarantee. He said that he had entered into a number of performance bonds and ordinary commercial guarantees, and the earlier guarantee and the Guarantee had all of the features of the former and none of the features of the latter. 21 In September 2014, a significant issue arose concerning the alleged late delivery of materials by Bluenergy to Ottoway. It is not necessary to set out the details. 22 In early October 2014, Bluenergy and Ottoway began negotiating an agreement to replace the subcontract. The concept was that the parties would undertake the scope of works under the head contract jointly and terminate the existing subcontract agreement. On 12 February 2015, the parties executed what Ottoway called an Alliance Agreement between Bluenergy as Participant 1/Contract Owner and Ottoway as Participant 2. The recitals to the Alliance Agreement provide a good indication of the purposes and effects of the agreement and are as follows: 1. The Project Owner has developed the largest magnetite mining and processing operation in Australia known as the Sino Iron project at Cape Preston, 100 kilometres South-West of Karratha in Western Australia's Pilbara region, focused on delivering a world class magnetite iron ore development (Project). 2. The Project Owner selected the Contract Owner to provide mechanical and piping installation and commissioning works relating to Dewatering Buildings 313 and 314 and Conveyor Repairs (the Works) and entered into a Works Contract numbered BCA3-ME-WC-3256 with the Contract Owner on or around 30 July 2014 to record each party's rights and obligations in respect thereof (the Works Contract). 3. The Contract Owner in turn outsourced the Works under the Works Contract to Participant 2 through a contract numbered SCBCA3-ME-WC-3256 dated 21 August 2014 (the Participant Contract). 4. The Participants have since undertaken to enter into an agreement to perform their respective roles in relation to the Project in a spirit of cooperation and openness with the objective of performing the Works. 5. The Participants have now agreed to enter into this Agreement for the performance of the Works and agree that the entering into and execution of this Agreement will automatically nullify and void the Participant Contract. 6. The Participants are committed to performing their respective roles and achieving the Project Owner's requirements in the carrying out of the Project and the performance of the Works, in return for the payments set out in the Works Contract and with a view to: a. performing the Works and meeting the requirements of the Works Contract; and b. meeting the Agreement Objective. This Agreement witnesses that in consideration of, among other things, the mutual promises contained in this Agreement, the Participants agree as set out in the Operative part of this Agreement. 23 Clause 14.7 deals with the repayment of the advance and is in the following terms: 14.7 Repayment of Advance Participant 2 agrees to repay the cash advance payment of $1,750,000.00 made by Participant 1 to Participant 2 (Advance) by way of distribution to Participant 1 of the first 10% of Participant 2's portion of every progress claim made by Participant 2 until such time as the Advance has been repaid in full. For the avoidance of doubt, this amount is in addition to any other amounts to which Participant 1 is entitled to receive pursuant to this clause 14. Participant 1 agrees to arrange for Participant 2's portion of the bank guarantee provided in respect of the Advance to be reduced by the amount of $250,000.00 for every $250,000.00 repayment milestone met by Participant 2 in repaying the Advance (that is, Participant 1 agrees to arrange for the reduction of Participant 2's portion of the bank guarantee in seven equal instalments whenever a cumulative $250,000 portion of the Advance has been repaid by Participant 2 to Participant 1, until the value of the Advance has been reduced to $0). 24 Clause 14.7 suggests that Bluenergy and Ottoway considered that the earlier guarantee related to Ottoway's obligation to Bluenergy to repay the advance payment, not Bluenergy's obligation to repay the monies it borrowed from Westpac. This is the case because the amount of the earlier guarantee is to be reduced by the payments made by Ottoway to Bluenergy, not Bluenergy's payments to Westpac. 25 Ottoway then made efforts to have the earlier guarantee reduced to reflect repayments it had made to Bluenergy. Bluenergy agreed to reduce the earlier guarantee to one million dollars. As far as I can see, the figure of one million dollars was calculated by reference to Ottoway's repayments to Bluenergy. Ottoway suggested that the identification of the Agreement in the new guarantee (i.e., the Guarantee) be the same as the existing bank guarantee (i.e., the earlier guarantee). 26 On 12 June 2015, the Guarantee was executed. 27 Ottoway contends that the Guarantee was invalid because it referred to the subcontract which was "null and void at this time". This submission does not have a great deal of apparent merit, having regard to the fact that it was Ottoway which suggested the wording of the new guarantee and both parties intended that the new guarantee (i.e., the Guarantee) should be effective in relation to the advance payment. The implications of this contention were not addressed in submissions in any detail. For example, a question arises as to whether the Guarantee is invalid or only the reference to the subcontract is invalid, leaving just the reference to the Guarantee securing Bluenergy's obligation to Westpac. I would not grant an interlocutory injunction based on this argument, or at least this argument alone. 28 Mr Young states that as at July 2015, Ottoway had reduced the advance payment obligation of $1,735,000 to $534,702.27 and with other unjustified deductions added back in, the obligation has been reduced to $262,912.40. After July 2015, the Alliance Agreement was varied (or revoked and replaced by another agreement) so that Ottoway would supply labour hire and plant and equipment hire to Bluenergy at agreed rates. Ottoway has rendered invoices to Bluenergy and an amount of $2,954,388.39 (ex GST) remains outstanding. 29 On 22 December 2015, Ottoway issued a Statutory Demand against Bluenergy for the sum of $1,455,794.03. Bluenergy did not pay Ottoway that amount and Ottoway applied to wind up the company. Bluenergy was placed into administration on 22 March 2016. On 13 April 2016, the company was wound up in insolvency. On 14 April 2016, Westpac appointed a receiver and manager. It appears that Bluenergy has substantial liabilities. 30 Mr Lovelock swore an affidavit wherein he set out details of the financial facilities Westpac provided to Bluenergy under various Business Finance Agreements ("BFA"). The following is a summary of the Facilities: BFA Date Facility Security 25.8.14 Business Card $20,000 Flawed Asset Arrangement ("FAA") 2.9.14 Two Bankers undertakings $1,134,900 each FAA Performance Guarantees to Sino Iron Pty Ltd 18.9.14 As above plus Bank Bill Business Loan for pre-payment to subcontractor (1) Personal guarantees by individuals (2) FAAs (3) General Security Arrangement over all existing and future assets and undertakings of Bluenergy (4) Irrevocable Standby Letter of Credit From National Australia Bank Limited ABN 12 004 044 937 for the amount of 1,735,000.00 on behalf of Ottoway Engineering Pty Ltd ACN 125 531 428 to secure the lending obligations of Bluenergy CMC Pty Ltd ACN: 160 063 187 to Westpac Banking Corporation ABN 33 007 457 141 31 In March 2015, Westpac agreed to vary the security on the facilities that it had made available to Bluenergy. Mr Lovelock described the effect of the variations in the following terms: 17. The Fourth BFA details that the security held by the Bank would be varied such that: (a) the deposits the subject of the BU Facilities FAA's would be reduced by 50%, that is the two deposits that were each in the amount of $1,134,900 would each be reduced to $567,500; and (b) the Bank would receive two irrevocable standby letters of credit from NAB on behalf of Ottoway each in the amount of $567,450 (Second NAB Guarantees). 18. Now produced and shown to me and marked with the letters "TL7" is a true copy of the Second NAB Guarantees, which includes as a condition that the Bank is only entitled to make a demand under the Second NAB Guarantees if the Westpac Guarantee is called on. 32 There was a suggestion by Westpac that Ottoway should have but failed to disclose to the Court at the ex parte hearing for an interim injunction, the two irrevocable standby letters of credit from NAB on behalf of Ottoway. I do not think that the fact that these agreements were not referred to was a material non-disclosure. 33 In May 2015, Bluenergy through a Mr Don Paterson asked Westpac for a reduction in the limit of the Bill Facility (the Facility provided to Bluenergy so that it could make the pre-payment) and advised Westpac that Ottoway had asked for a replacement guarantee to reflect "the then debit balance of the Bill Facility". Ultimately, Westpac accepted the Guarantee in place of the earlier guarantee. The correspondence between Mr Paterson on behalf of Bluenergy and officers of Westpac suggest that the former was putting to Westpac that the earlier guarantee and the proposed guarantee (to become the Guarantee) secured the loan by Westpac to Bluenergy. Although it is not entirely clear, it seems that Bluenergy had reduced its indebtedness to Westpac under the Bill Facility to a point that it was below $1 million. In fact, the debit balance as at 9 June 2015 was $989,268.12. The BFA dated 23 June 2015 referred to the change to the limit of the Bill Facility from $1,735,000 to $1,000,000. The existing security from Ottoway was described as it is above. The proposed security was described in the following terms: Irrevocable Standby Letter of Credit From National Australia Bank Limited ABN: 12 004 044 937 for the amount of $1,000,000.00 on behalf Ottoway Engineering Pty Ltd ACN: 125 531 428 to secure the lending obligations of Bluenergy CMC Pty Ltd ACN: 160 063 187 to Westpac Banking Corporation ABN: 33 007 457 141 34 It seems that there was a change in the limit of the Bill Facility in February 2016 with the limit being lowered from $1 million to $860,000. The debit balance as at 29 March 2016 was $854,021.53. 35 Westpac's documents are to the effect that Westpac viewed the earlier guarantee and the Guarantee as security for the obligations that Bluenergy owed to Westpac, and not the obligations that Ottoway owed to Bluenergy. I hesitate to make any definitive findings in light of the incomplete nature of the evidence, but it would seem that until the Guarantee was executed in June 2015, the amount of Ottoway's debt to Bluenergy with respect to the advance payment and Bluenergy's debt to Westpac under the Bill Facility were the same or nearly the same. Thereafter, they appear to have diverged for reasons which are not clear. 36 The first issue is the proper construction of the Guarantee. The relevant principles are clear. An objective approach to the determination of the rights and liabilities of the parties is to be adopted. In the case of a commercial contract, the meaning of the terms of the contract is to be determined by what a reasonable business person would have understood those terms to mean. In order to determine meaning, a court will be required to consider the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects secured by the contract. The latter consideration directs attention to the genesis of the transaction, the background and the market in which the parties are operating (Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd and Others (2014) 251 CLR 640; [2014] HCA 7; at [35] per French CJ, Hayne, Crennan and Kiefel JJ; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and Another [2015] HCA 37; (2015) 325 ALR 188 at 197-198 [46]-[53] per French CJ, Nettle and Gordon JJ; at 209-210 [108]-[113] per Kiefel and Keane JJ; at 211 [119] per Bell and Gageler JJ). 37 The Guarantee refers to two sets of obligations, being the subcontract between Ottoway and Bluenergy, and the obligations owed by Bluenergy to Westpac, and the question is which set of obligations are the subject of the Guarantee. Despite the apparently clear reference to the Guarantee securing the obligations of Bluenergy to Westpac, I do not think, at least for the purpose of determining whether the applicant has a prima facie case in the relevant sense, it is appropriate to fasten on that aspect of the identification of the agreement and ignore the reference to the subcontract. If ambiguity is necessary in order to permit reference to surrounding circumstances, then I think that it is present. 38 The surrounding circumstances would go a long way to rebutting at least one of Westpac's arguments or at least an argument it did not abandon. Westpac argued, or at least did not abandon an argument, that the Guarantee secured all and any of Bluenergy's borrowing obligations to Westpac and not just Bluenergy's obligations under the Bank Bill Facility. It certainly wrote a letter in late March 2016 seeking to enforce the Guarantee to the extent of Bluenergy's liability under the Bank Bill Facility and seeking a replacement guarantee in the amount representing the difference between that figure and the amount of $1 million. Whilst I am not reaching any final conclusions on this interlocutory application, that seems a difficult position to maintain in light of the following matters. The Guarantee was given in connection with the advance payment which Bluenergy was able to make to Ottoway because of the Bank Bill Facility made available to it by Westpac. Furthermore, the advance payment was the same amount advanced under the Bank Bill Facility and the amount in the earlier guarantee was $1,735,000 which was the amount of the advance payment and the amount advanced under the Bank Bill Facility. This suggests to me, at least at a prima facie level, that the identification of the Agreement in the Guarantee will not be construed so as to cover all of Bluenergy's obligations to Westpac. In other words, there will be some qualification on the general words used in the Guarantee. The matters I have identified (together with other matters) are suggestive of the fact that the parties, including Westpac, were aware and intended that the Guarantee related to the advance payment. 39 I think that, at a prima facie level at least, there is force in the submission that the form of the Guarantee and the circumstances in which it was executed is more consistent with it being a performance guarantee or bond securing Ottoway's obligations to Bluenergy than an ordinary commercial guarantee securing another party's obligations to a third party. 40 It is difficult to see how some of the provisions of the Guarantee operate in the circumstances of this case. The Guarantee refers to payment being made "irrespective of the performance or non-performance by the Customer [Ottoway] or the Beneficiary [Westpac] of the Agreement in any respect", but one may ask what performance obligations Ottoway had in relation to Bluenergy's obligations to Westpac. 41 At a prima facie level, it seems that in its dealings with Ottoway, Bluenergy were proceeding on the basis that the Guarantee related to Ottoway's obligations to Bluenergy. I have already referred to cl 14.7 of the Alliance Agreement. There is evidence before me that Westpac may have left the negotiations with Ottoway about the Guarantee to Bluenergy and arguably responsible for its conduct. The uncertainties surrounding the proper construction of the Guarantee and the conduct of Bluenergy (at a prima facie level) suggests to me that there is a prima facie case in the relevant sense, either as a matter of construction, or by reference to the doctrines of misleading or deceptive conduct or (perhaps less likely) unconscionable conduct. The Balance of Convenience 42 Ottoway is a wholly-owned subsidiary of E & A Limited ("E & A") which is a public company with continuous disclosure obligations under the Corporations Act 2001 (Cth). Mr Young believes that if Westpac calls on the Guarantee, then E & A will be required to disclose that fact to its shareholders and the market, and that that will have a negative impact on E & A's share price. Mr Young also believes that if Westpac calls on the Guarantee, then that will have a negative impact on E & A's relationship with its banker, the National Bank, and cause the bank to re-evaluate the terms of its facilities with E & A. 43 Westpac points to the fact that E & A made an announcement to the Australian Stock Exchange Ltd on 11 April 2016 of Bluenergy going into administration and of Ottoway's application to wind up Bluenergy. E & A's announcement said that Ottoway Engineering was unable to estimate the potential for recoveries until such time as the terms of the deed of company arrangement are proposed and the impact of recent transactions was assessed. 44 Westpac did not identify any prejudice to it if an interlocutory injunction is granted other than the fact that it cannot take steps to enforce the Guarantee as it seeks to do. 45 I think the balance of convenience, although not overwhelming, favours Ottoway. Conclusion 46 I will extend the injunction until trial or until further order. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 2 June 2016