TYMS ENTERPRISES PTY LTD and ORS v MARANBOY PTY LTD and ORS [1994] NSWCA 326

TYMS ENTERPRISES PTY LTD and ORS vy MARANBOY PTY LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 30 November 1993, 17 March 1994 [1994] NSWCA 326

APPEAL from Equity Division — Construction of Deed — Right to insist on Bank guarantees — Waiver of right — Held: right waived.

Mahoney JA Mr Mallos, Mr Souter and Mr and Mrs Tymczyszyn were concerned with,inter alia, two companies, General Plastics Pty Ltd and Yanak Pty Ltd. Disputes arose between them. The disputes were the subject of proceedings in the Federal Court of Australia.

In order to settle the disputes, the parties entered into a deed of 27 October 1992. The deed required or involved action to be taken by the parties to the deed. Mr Tymczyszyn and those associated with him purported to rescind the deed. Mr Mallos, Mr Souter and Maranboy Pty Ltd, a company associated with Mr Mallos, sought specific performance of the deed. On 6 May 1993 Young J ordered that Mr Tymezyszyn and Tyms Enterprises Pty Ltd perform their obligations under the deed. An appeal has been brought to this Court against his Honour's order.

The order made by Young J was based upon judgments delivered by him on 23 February 1993 and 6 May 1993. Mr Bret Walker for the appellants and Mr Jackson QC for the respondents have isolated the issues which are now in dispute between the parties and have confined the submissions made to this Court to those issues. In the event, neither side has sought to support the findings or the reasoning of the trial judge; in particular, neither has relied upon "the doctrine of proportionality" to which the learned judge referred.

It is therefore necessary that I indicate what are the outstanding issues and the facts which bear upon them. I shall confine what I say to what is necessary for this purpose. It will be convenient to deal with what has been put to the Court under three headings: