Wollongong Coal Ltd v Gujarat NRE India Pty Ltd

(2019) 100 NSWLR 432; [2019] NSWCA 135

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Deed
3. › Construction of multipartite deed
4. › Guarantor's right of indemnity against primary obligor
5. › Clause providing guarantor 'irrevocably waives and must not exercise' right of indemnity
6. › Whether clause contained unilateral renunciation or solely promissory covenant
7. › Whether enforceable by primary debtor or only by creditor
1. Contract
2. › Deed
3. › Privity in deeds inter partes
4. › Whether party to multipartite deed entitled to enforce all covenants in deed
5. › Whether being named party sufficient to enforce covenant
6. › Whether enforcement depends on construction
7. › Conveyancing Act 1919 (NSW), s 38(3)
1. Equity
2. › Set-off in equity
3. › Requirement of impeachment
4. › Whether debt owed by parent company impeached subsidiary's debt to appellant
5. › Whether absence of mutuality fatal
6. › Whether sufficient connection between debts established

Quick Take

A clause in a multipartite deed providing that a guarantor 'irrevocably waives' its right of indemnity against the primary debtor operates as an immediately effective unilateral renunciation enforceable by the primary debtor, distinct from any promissory component that may be limited to enforcement by the creditor alone.