› Leave to apply out of time under RSC O 14 r 1(1) - delay, prejudice and merits
Practice and procedure
› Summary judgment
› No real question to be tried - guarantor's liability for principal debt
Contracts
› Guarantees
› Scope of guarantee - whether 'all obligations' extends to interest - strict construction - [name withheld]
Contracts
› Construction
› Interest rate tied to maximum repayment term - absence of default provisions - commercial sense
Quick Take
1Accrual of contractual interest during a delay in bringing a summary judgment application is not, without more, prejudice warranting refusal of leave under RSC O 14 r 1(1); absent forensic prejudice, a modest delay explained by attempts to serve a co-defendant may be excused where the merits are strong.
2A guarantee of 'any and all present and future duties, obligations and indebtedness' owed by a principal debtor under a funding letter extends to interest payable under that letter, even though the guarantee's repayment clause mentions only the principal; the strict-construction principle in [name withheld] does not confine the guarantee to the principal sum absent any variation of the underlying agreement.
3On the facts, a term that a sum 'will incur a 20% per annum rate of interest with a maximum repayment term of 60 days', with no default provisions, was held to support the contractual rate only for the 60-day term, with statutory interest under s 32 of the Supreme Court Act 1935 (WA) applying thereafter.
