Gujarat NRE India Pty Ltd v Wollongong Coal Limited [2018] NSWSC 1459

Supreme Court New South Wales

Medium Neutral Citation: Gujarat NRE India Pty Ltd v Wollongong Coal Limited [2018] NSWSC 1459 Hearing dates: 13 – 15 March 2017; 4-5 September 2017; 28 – 31 May 2018 and 6-7 June 2018 Decision date: 28 September 2018 Jurisdiction: Equity Before: Robb J Decision: 1.Declaration that the plaintiff is entitled to be indemnified by the defendant in respect of the sale by UIL (Singapore) Pte Ltd of the plaintiff's 150,000,000 shares in the defendant charged by the plaintiff to secure the indebtedness of the defendant under the deed called the Override Deed made on 25 July 2013.

2. Declaration that the defendant is indebted to the plaintiff in the sum of $6,565,398.06.

3. Direct the parties to bring in short minutes of order to give further effect to these reasons including in respect of interest payable by the defendant to the plaintiff pursuant to s 101 of the Civil Procedure Act 2005 (NSW).

4. Direct the parties to exchange and deliver to the associate to Robb J submissions on the costs orders that should be made by the Court. Catchwords: GUARANTEE AND INDEMNITY — Guarantor — Rights against debtor — Right of indemnity — Whether the plaintiff as a guarantor and third-party chargee should be indemnified by the defendant debtor in the amount of $12,000,000 in respect of the liability of the defendant to a creditor

GUARANTEE AND INDEMNITY — Contract of guarantee — Deed — Construction GUARANTEE AND INDEMNITY — Contract of guarantee — Waiver — Debtor's rights to enforce waiver of indemnity given by guarantor in general terms — permanent and irrevocable waiver — whether the plaintiff is disentitled from seeking indemnity from the defendant GUARANTEE AND INDEMNITY — Contract of guarantee — Privity of contract GUARANTEE AND INDEMNITY — Contract of guarantee — Contractual intention GUARANTEE AND INDEMNITY — Contract of guarantee — Enforcement — whether the defendant is entitled to enforce a term in a multi-party deed in circumstances where the clause is expressed in general terms without identifying which of the parties to the deed is entitled to enforce it — whether every party to a multi-party deed is entitled to enforce every term in it — the waiver of indemnity was a covenant made by the guarantor in favour of the creditor alone and was not intended to be enforceable by the debtor — the debtor is not entitled to enforce the waiver of indemnity