A suspension clause in a guarantee that refers to 'set-off' without qualification encompasses equitable set-off, and a guarantor cannot avoid the clause by characterising claims as statutory claims for relief under the Australian Consumer Law where the alleged unconscionable conduct relates to the exercise of rights under securities (such as the sale of secured property) rather than the making of the guarantee itself. The distinction between a defence that denies the enforceability of a guarantee (which escapes a suspension clause) and a defence that merely offsets or reduces liability (which is caught by the clause) is critical in summary judgment applications on guarantees.
The full text is available to signed-in members, including the 23 later cases that cite this judgment.
3 of the 23 citing cases carry a classified treatment. How each court treated it is available to signed-in members.