NSW Caselaw
PURCELL v SPROULE
SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
MASON P, FITZGERALD AJA and HODGSON CJ in Eq 10 November 1998, 10 November 1998 [1998] NSWCA 177
CONTRACT — construction of loan agreement — plain promise to pay by borrowers whether as principal debtors or guarantors.
Fitzgerald AJA The appellant, the defendant in the District Court, has appealed against a judgment in the respondent's favour for $277,009 plus costs. The dispute between the parties relates to a loan made by the respondent on 1 March 1991. That transaction was documented by a deed of agreement dated that day which was signed by the respondent, the appellant and another man, Mr Leigh Randell. The document was in the following terms:
"Deed of Agreement between Reginald Norris Sproule of 8 Marinella Street, Manly Vale Sydney, New South Wales hereinafter called the Lendor and Vesodi Pty Ltd of 253 Broadway, Sydney New South Wales and Brian Gerald Purcell of 9 Yuruga Avenue, Caringbah, Sydney New South Wales and Leigh Randell of 137 St Johns Avenue, Gordon, Sydney New South Wales hereinafter called the Borrowers.
Whereas the Lendor is lending to the Borrowers a sum of Two Hundred Thousand Dollars ($200,000) to be used within the business operated by Vesodi Pty Ltd and Vesodi Pty Ltd undertakes to pay interest to the Lendor at the rate of 17% (seventeen percentum) per annurn on the balance owing at any time.
Now it is agreed that:
1. The Borrowers will recompense the Lendor for all costs and expenses incurred by the Borrower in making this loan including loss or deferral of interest.
2. The Borrowers will repay the sum lent on the following dates;
a) $32,500.00 on the 4" April, 1991 b) $67,500 on the I May, 1991 c) $100,000,000 on the 1°' March, 1992
3 The Borrowers will each guarantee the repayment of the sum lent in accordance with 2a), 2b), 2c) above.
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