Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON AND KIEFEL JJ

AGRICULTURAL AND RURAL FINANCE

PTY LIMITED APPELLANT

AND

BRUCE WALTER GARDINER & ANOR RESPONDENTS

Agricultural and Rural Finance Pty Limited v Gardiner

[2008] HCA 57

11 December 2008

S180/2008

ORDER

1. Appeal allowed.

1. Set aside paragraphs 1-3, 7 and 8 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 6 September 2007, and in place thereof order:

(a) appeal allowed in part;

* + 1. set aside paragraphs 1, 2, 4, 5 and 6 of the order made by Young CJ in Eq on 11 April 2006; 2. appellant have judgment in the sum of the amounts owing under the relevant loan agreement for principal and interest on the first, second and fourth loans ("the sum"); and 3. first respondent to pay the appellant's costs in the Equity Division of the Supreme Court of New South Wales and in the appeal to the Court of Appeal. 1. The parties have 21 days from the date of this order to agree upon the sum, and in default of agreement the matter be remitted to the Court of Appeal for determination of the sum. 2. First respondent to pay the costs of the appellant and the second respondent in this Court.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with C J Bevan for the appellant (instructed by Evangelos Patakas & Associates)

R M Smith SC with M A Jones for the first respondent (instructed by Clayton Utz)

G P Ellis SC with F F Salama for the second respondent (instructed by Colin Biggers & Paisley)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Agricultural and Rural Finance Pty Limited v Bruce Walter Gardiner

Contracts – Interpretation – Where indemnity agreement provided that indemnity effective and enforceable if borrower "punctually paid" amounts under related loan agreement – Meaning of "punctually" – Whether context of agreement required departure from dictionary meaning – Whether conduct of lender in accepting late payment could render such payment "punctual".