The Court of Appeal refused a stay restraining AGL Energy from calling upon a bank guarantee under a construction contract. [name withheld] found that while the applicant's arguments based on s 67J of the Queensland Building and Construction Commission Act 1991 (Qld) and the construction of a deed of release were not unarguable, the applicant did not have the better side of the argument on either point, and the evidence of prejudice was weak — particularly given the applicant had not objected when the first guarantee was called upon. The court observed that s 67J on its face applies only where security is used to obtain 'an amount owed under the contract' and may not extend to a call-up of moneys to be retained as security under a clause like cl 5.3, but did not finally resolve the question.
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