Starrs v Retravision (WA) Ltd

[2012] WASCA 67

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Default judgment
3. › Application to set aside
4. › Irregularly entered judgment
5. › Judgment for excessive amount
6. › Whether judgment should be set aside or varied
7. › Whether arguable defence on the merits
1. Practice and Procedure
2. › Default judgment
3. › Application to set aside
4. › Regularly entered judgment
5. › Whether failure to warn before entering judgment renders entry irregular
6. › Whether unreasonable conduct makes entry irregular
1. Contract
2. › Implied terms
3. › Guarantee
4. › Whether term implied requiring creditor to exercise retention of title rights before calling on guarantee
5. › Business efficacy test
6. › Obviousness test
1. Guarantee and Indemnity
2. › Discharge of surety
3. › Impairment of security by creditor
4. › Whether retention of title clause constitutes security
5. › Effect of contractual waiver of surety's rights

Quick Take

A creditor's failure to exercise retention of title rights before calling on a guarantee does not give rise to an implied term requiring such exercise, particularly where the guarantee contains broad waiver and anti-discharge provisions. The equitable principle that a surety is discharged by impairment of security is subject to the express terms of the guarantee. An action on a guarantee for a debt does not attract a duty to mitigate.