Kearney v Grow Choice Pty Ltd [2023] NSWCA 325

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kearney v Grow Choice Pty Ltd [2023] NSWCA 325 Hearing dates: 13 December 2023 Date of orders: 21 December 2023 Decision date: 21 December 2023 Before: Meagher JA at [1]; Mitchelmore JA at [2]; Basten AJA at [3] Decision: (1) Grant the applicant leave to appeal from the judgment and orders in the District Court of 2 June 2023. (2) Grant leave to the appellant to file and rely on the amended notice of appeal annexed to the notice of motion dated 12 December 2023, and direct the appellant to file the amended notice of appeal by 12 January 2024. (3) Allow the appeal and – (a) set aside so much of order (1) made in the District Court as gave judgment for the plaintiff against the second defendant; (b) set aside order (4) with respect to the liability of the second defendant for the costs of the first defendant; and to the extent that it covered the plaintiff's claim with respect to the second defendant; (c) dismiss the amended statement of claim in so far as it claimed relief against the second defendant. (4) If either party seeks costs of the trial, it may do so by a motion filed by 2 February 2024. (5) Order that the respondent pay the applicant/appellant's costs in this Court. Catchwords: APPEAL – application for leave – amount under threshold – whether challenge more than merely arguable – applying arguability criterion on a concurrent hearing – application by party not bearing onus of proof – no challenge to findings of primary fact GUARANTEE AND INDEMNITY – contract of guarantee – oral undertaking by principal of debtor company – repeated undertakings – contractual intention – implied contingent agreement – consideration – forbearance – continuing to trade Legislation Cited: District Court Act 1973 (NSW), s 127 Cases Cited: Ye v Chen [2022] NSWCA 219 Edlin v Williams [1998] QCA 439; [2000] ANZ Conv R 43 Crears v Hunter (1887) 19 QBD 341 Category: Principal judgment Parties: Simon Peter Kearney (Applicant) Grow Choice Pty Ltd (Respondent) Representation: Counsel: J Mack (Applicant) A E Hopkins (Respondent)