Wollongong Coal Ltd v NRE Resources Pty Ltd; NRE Resources Pty Ltd v Wollongong Coal Ltd (No 2) [2017] NSWSC 1552

Supreme Court New South Wales

Medium Neutral Citation: Wollongong Coal Ltd v NRE Resources Pty Ltd; NRE Resources Pty Ltd v Wollongong Coal Ltd (No 2) [2017] NSWSC 1552 Hearing dates: 31 October and 1 November 2017 Decision date: 16 November 2017 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendant entitled to indemnity from plaintiff; plaintiff's claim to be dismissed; defendant/cross claimant entitled to judgment Catchwords: GUARANTEE AND INDEMNITY – where plaintiff and defendant were related companies – where defendant's general ledger showed debt owing to plaintiff – whether presumption arising from s 1305 of the Corporations Act 2001 displaced - where defendant provided security for plaintiff's indebtedness to a lender - where lender appropriated security in partial satisfaction of plaintiff's indebtedness – where such appropriation not reflected in defendant's general ledger – where defendant in effect acted as surety for plaintiff's indebtedness to lender – whether defendant entitled to indemnity from plaintiff Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Anson v Anson [1953] 1 QB 636 Friend v Brooker (2009) 239 CLR 129 Hill v Hill [2005] NSWSC 863 Israel v Foreshore Properties Pty Ltd (in liq) (1980) 30 ALR 631 McColl's Wholesale Pty Ltd v State Bank of New South Wales [1984] 3 NSWLR 365 Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116 Re Debtor [1937] Ch 156 Texts Cited: Courtney & Phillips, The Modern Contract of Guarantee (3rd English ed, 2016) Mason & Carter, Restitution Law in Australia (LexisNexis) O'Donovan & Phillip, The Modern Contract of Guarantee (looseleaf online, Thomson Reuters) Category: Principal judgment Parties: Wollongong Coal Limited (Plaintiff/Cross-Defendant) NRE Resources Pty Limited (Defendant/Cross-Claimant) Representation: Counsel: C D Wood with T Cleary (Plaintiff/Cross-Defendant) D R Pritchard SC with A J Macauley (Defendant/Cross-Claimant)