The Court held that commencing fresh proceedings against a joint and several guarantor constituted an abuse of process where the plaintiff had named that guarantor in earlier proceedings but failed to serve him within time due to its own errors (not attempting service at a known address and not seeking substituted service), discontinued against him at the hearing, obtained judgment against the co-guarantor who was unrepresented, and then sued the unserved guarantor only after the co-guarantor went bankrupt. Applying UBS v Tyne, the Court found the abuse was established not by analogy with UBS's specific facts but on the particular circumstances, including the unjustifiable delay, increased costs, risk of inconsistent judgments, deprivation of the guarantor's opportunity to challenge expert evidence and cross-claim against the co-guarantor before bankruptcy, and non-compliance with Civil Procedure Act obligations — notwithstanding that the guarantor remained bound by his guarantee and the fresh proceedings were commenced within time. The Court reached this conclusion with acknowledged difficulty given the settled principle that parties must honour their contracts.
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