NSW Caselaw
New South Wales District Court
CITATION: Nicholson Petroleum Pty Ltd v NSW Pastoral Investments Pty Ltd [2009] NSWDC 90
HEARING DATE(S): 9 April 2009 EX TEMPORE JUDGMENT DATE : 9 April 2009
JURISDICTION: Civil
JUDGMENT OF: Goldring DCJ
DECISION: Verdict for the second defendant
CATCHWORDS: GUARANTEE AND INDEMNITY - Construction - Ambiguity
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Banque Brussells Lambert SA v Australian National Industries Limited (1989) 21 NSWLR 502 CASES CITED: Ankar Pty Ltd v National Westminster Finance (Australia) Limited (1987) 162 CLR 549 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Chan Cresdon Pty Ltd (1989) 168 CLR 242
Nicholson Petroleum Pty Ltd (Plaintiff) PARTIES: NSW Pastoral Investments Pty Ltd (First Defendant) Gregory Ian Atwells (Second Defendant)
FILE NUMBER(S): 4006 of 2008
COUNSEL: J C Prowse (Plaintiff) S Gray (Second Defendant)
SOLICITORS: MCW Lawyers (Plaintiff) Slater & Gordon Lawyers (Second Defendant)
JUDGMENT
1 HIS HONOUR: In this matter, the plaintiff, Nicholson Petroleum Pty Ltd, seeks to recover a sum of money from the second defendant Mr Atwells. The claim arises out of money owing to the plaintiff by the first defendant, New South Wales Pastoral Investments Pty Ltd, which is now in liquidation, Mr Atwells was formerly a director of that company. It is not in dispute that the first defendant did incur a significant debt to the plaintiff and that that money is still owing. What is in dispute is the nature and effect of a document signed by Mr Atwells, the second defendant, on 25 April 2008. That is a document which I will read in full. It is on the letterhead of Nicholson Petroleum Pty Ltd with their address and various numbers. It is dated 23 April 2008, it is addressed to Mr J Benson, National Bank of Australia, Forbes, New South Wales, 2871, and it then bears a heading "Nicholson Petroleum Pty Ltd and Gregory Ian Atwells Payment Agreement". "I, Gregory Ian Atwells personally guarantee, or come to some agreement to pay the outstanding amount of $115,012.46 which was incurred by NSW Pastoral Investment Pty Ltd."
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