Horsburgh v Emerald Rock Pty Ltd

[2016] QCA 47

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Guarantee and indemnity
3. › Discharge of surety
4. › Surrender of lease by lessor and lessee
5. › Whether guarantee discharged where deed of surrender replaced lessee's obligations with new debt
6. › Whether express provisions in guarantee precluded reliance on rules applicable to guarantees
7. › Construction of clauses preserving enforceability
1. Contract
2. › Guarantee and indemnity
3. › Discharge of surety
4. › Variation of principal debtor's obligations without surety's consent
5. › Whether express waiver clause precluded reliance on variation as ground of discharge
1. Contract
2. › Guarantee and indemnity
3. › Discharge of surety
4. › Release of co-surety
5. › Whether deed of settlement operated as release or covenant not to sue
6. › Construction of deed as a whole
7. › Effect of clause preserving proceedings against remaining surety
1. Contract
2. › Guarantee and indemnity
3. › Construction
4. › Liability of surety strictissimi juris
5. › Ambiguous provisions construed in favour of surety
6. › Whether provisions ambiguous

Quick Take

Broadly drafted clauses in a guarantee preserving enforceability notwithstanding surrender of the lease, variation of the lessee's obligations, or release of a co-surety will be given effect according to their terms where they are unambiguous. A deed of settlement with a co-surety that expressly preserves proceedings against the remaining surety will be construed as a covenant not to sue rather than a release, so that the remaining surety is not discharged.