Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64 Hearing dates: 9 February 2015 Date of orders: 23 March 2015 Decision date: 23 March 2015 Before: Meagher JA at [1]; Barrett JA at [5]; Emmett JA at [6] Decision: (1) Parties to agree on, and file, short minutes giving effect to these reasons within 7 days. (2) If the parties cannot agree on the terms of the short minutes, the appellant is to file and serve proposed orders and brief submissions within 14 days, and the respondent is to reply within 21 days. Catchwords: GUARANTEE AND INDEMNITY – construction of indemnities – whether a section of a loan application form entitled "Guarantee and Indemnity by Directors", which was divided into two columns with two signature blocks, gave rise to both a guarantee and an indemnity where only one signature block was signed – whether, therefore, the appellant was bound by the indemnity

GUARANTEE AND INDEMNITY – discharge from indemnities – whether a material variation of the terms of the principal obligations discharged the appellant in circumstances where the principal contract contemplated amendment – whether the creditor's failure to perfect security for the debtor's indebtedness discharged the appellant – whether the creditor's unilateral increase of the credit limit and its granting of extensions of time to the debtor discharged the appellant

GUARANTEE AND INDEMNITY – discharge from indemnities – whether the appellant's liability was limited by reference to his time as a director, in circumstances where the appellant signed the indemnity in his capacity as a director Legislation Cited: Corporations Act 2001 (Cth), Pt 2K.2 District Court Act 1973 (NSW), s 127 Evidence Act 1995 (NSW), s 69 Cases Cited: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; 162 CLR 549 Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269 Brueckner v Satellite Group (Ultimo) Pty Ltd [2002] NSWSC 378; 15 BPR 98,462 Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 Coulthart v Clementson (1879) 5 QBD 42 Holme v Brunskill [1878] 3 QBD 495 Morris v Ford Motor Co Ltd [1973] 1 QB 792 Re Nicholson; Ex parte Totterdell [1989] FCA 182 Schoenhoff v Commonwealth Bank [2004] NSWCA 161 Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; 166 CLR 245 Trade Credits Ltd v Burnes [1979] 1 NSWLR 630 Texts Cited: D Marks and G Moss, Rowlatt on Principal and Surety (6th ed 2001, Sweet & Maxwell) Category: Principal judgment Parties: Caltex Australia Petroleum Pty Ltd (Appellant) Representation: Counsel: C Locke (Appellant) P Reynolds (Respondent)