Docklands Press v Stewart
[2014] VSC 536
•24 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL LIST
S CI 2013 02036
| DOCKLANDS PRESS PTY LTD (ACN 097 210 074) | Plaintiff |
| v | |
| CRAIG FORBES STEWART | First Defendant |
| and | |
| MARK FREEMAN | Second Defendant |
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JUDGE: | VICKERY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2014 |
DATE OF JUDGMENT: | 24 October 2014 |
CASE MAY BE CITED AS: | Docklands Press v Stewart & anor |
MEDIUM NEUTRAL CITATION: | [2014] VSC 536 |
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GUARANTEE AND SURETY - Application for a commercial credit account – Guarantee by directors of customer – Whether guarantors liable retrospectively for the debt of the customer in addition to debt incurred after entry into the guarantee - Liability of the surety is strictissimi juris and ambiguous contractual provisions should be construed in favour of the surety – Guarantee ambiguous – Construction in favour of the guarantor – Whether payment made by co-guarantor discharged the indebtedness of the customer rendering the other guarantor free from liability under the guarantee.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Clarke | HWL Ebsworth |
| For the Defendant | Mr M Stirling | Richmond & Bennison |
HIS HONOUR:
This proceeding involves the construction of a guarantee in writing entered into between parties who had traded together for some time. The fundamental question for determination is whether the guarantee was confined to guaranteeing payment for goods and services supplied after entry into its terms, or whether in addition, it guaranteed past indebtedness.
Complete Printing Solutions Pty Ltd (‘CPS’) conducted business as a print broker from about 1999. From about 6 December 2011 until about 6 February 2013 it purchased printing services and products from the Plaintiff, Docklands Press Pty Ltd (‘Docklands Press’). In late October 2012, Docklands Press provided a written Application for Commercial Credit Account (the ‘Application for Commercial Credit Account’ or the ‘Application’) to CPS which contained a guarantee clause to be signed by the directors of CPS, who were the First Defendant (‘Stewart’) and the Second Defendant (‘Freeman’).
The Application for Commercial Credit Account, contained terms which included a guarantee (the ‘Guarantee’). The Application was completed (and signed) by CPS on 30 October 2012. The Guarantee was then signed by Stewart and Freeman on 31 October 2012.
As at 31 October 2012, arising from the prior trading relationship, CPS was indebted to Docklands Press in the sum of $1,008,363.
Following execution of the Guarantee, and after the Commercial Credit Account was opened, CPS purchased further printing services from Docklands Press in the sum of $119,068, which have not been paid for by CPS.
On 19 December 2012, Freeman as co-guarantor made a payment of $282,000 to Docklands Press.
The trading relationship between CPS and Docklands Press continued until about 6 February 2013.
The case of Docklands Press is that CPS is currently indebted to it in the sum of $688,753 (excluding interest), of which $119,068 (excluding interest) relates to debts incurred by CPS after the execution of the Guarantee on 31 October 2012.
There are two principal issues raised for determination in this proceeding.
The first issue is whether the First Defendant, Stewart, is liable retrospectively for the debt which CPS continues to owe to Docklands Press for goods supplied up until the execution of the Guarantee on 31 October 2012. The answer will turn on construction of the Guarantee. It is conceded by Stewart that he would be liable under the Guarantee for debts incurred by CPS after 31 October 2012, but only if these debts have not been paid by either CPS or Stewart’s co-guarantor, Freeman.
The second issue is, whether the payment of $282,000 to Docklands Press on 23 December 2012 made by Freeman as co-guarantor has discharged the liability which Stewart had to Docklands Press for the debt of $119,068 incurred by CPS after the execution of the Guarantee. The answer to this is provided by proper application of the general law.
Chronology of Key Facts
The key facts in the trading relationship between CPS and Docklands Press I find are:
(1)CPS traded with Docklands Press from about 6 December 2011 until about 6 February 2013;
(2)As at 31 October 2012 CPS was indebted to Docklands Press in the sum of $1,008,363;
(3)On 31 October 2012 CPS opened a Commercial Credit Account with Docklands Press on the terms set out in a written application which was entitled: ‘Application for Commercial Credit Account’;
(4)On 31 October 2012 Stewart and Freeman also executed the Guarantee in favour of Docklands Press. The Guarantee was in writing and was annexed to the terms set out in a written application;
(5)On 23 December 2012 Freeman (the co-guarantor) made an advance to Docklands Press in the sum of $282,000;
(6)On or about 4 June 2013 the Plaintiff, Docklands Press, entered default judgments against the First Defendant, Stewart, and the Second Defendant, Freeman, in the amount of $970,753.40 together with interest of $100,405.15 and costs of $3,300.00.
(7)By email dated 6 June 2013, Freeman's solicitor requested Docklands Press to apply Freeman’s payment by way of the advance in part satisfaction of the Judgment Debt.
(8)Between 1 November 2012 and about 6 February 2013, CPS incurred additional indebtedness to Docklands Press in the sum of $137,319. Docklands Press accepts that the debts of $8,571 from 29 January 2013 and $9,680 from 6 February 2013 were paid for by CPS and are not claimable in this proceeding. The unpaid debt for this period is therefore $119,068 (exclusive of interest);
(9)Between 1 April 2012 and 13 February 2013, CPS paid Docklands Press the sum of $995,083;
(10)CPS is currently indebted to Docklands Press in the total sum of $670,532 (or $688,753 if the debts under (5) have not been excluded), of which $119,068 relates to debts incurred after 31 October 2012;
(11)CPS is indebted to Docklands Press in the sum of $137,085 for interest, approximately $21,187,of which relates to the post 31 October 2012 debt of $119,068.
The Terms of the Commercial Credit Account
The Application for Commercial Credit Account and was made to Docklands Group Pty Ltd (which was the company name of Docklands Press from 29 May 2003 until 19 September 2006. The second page of the Commercial Credit Account was entitled ‘APPLICATION FOR CREDIT ACCOUNT’ and named in handwriting Complete Print Solutions Pty Ltd as the company applicant and Craig Stewart and Mark Freeman as its directors.
By clause 1 the ‘estimated value of credit required monthly’ was handwritten to be $400,000.
By clause 2 CPS applied ‘for the opening of a commercial credit account and provide [sic] the above information in support thereof.’
By clause 3, CPS acknowledged that it had read and accepted the conditions of sale. Ian Milburn, Chief Financial Officer of CPS (‘Milburn’), signed the Application and dated it 30 October 2012.
The terms and conditions of the Commercial Credit Account contained 16 printed clauses, each with sub-clauses.
By clause 1.1(2):
· ‘Goods’ was defined to mean ‘the products and, if any, services supplied by the Supplier to the Purchaser from time to time;’
· ‘Supplier’ was defined as Docklands Press.
Other terms and conditions of significance in this proceeding provided as follows:
· Clause 2.1 provided that: ‘The Goods sold by the Supplier are sold on these terms and conditions;’
· Clause 2.2 went on to provide that: ‘The agreement between the Supplier and the Purchaser in relation to the supply of Goods will comprise the Quotation (if any) and these terms and conditions, to the entire exclusion of any terms and conditions of the Purchaser (whether set out in a purchase order, confirmation of order or any other document);’
· Clause 3 provided terms concerning quotations and orders;
· Clause 5.1 provided that all invoices were due and payable in full before the last banking day of the month following that date of the invoice to which the Goods relate;
· Clause 5.2 provided that in the event of default by the Purchaser ‘in making payment in accordance with these terms and conditions,’ the supplier might [charge interest, claim collection costs and or claim a general lien].
The Guarantee
The Guarantee signed by Stewart and Freeman was in the following terms:
‘WE, the said CRAIG STEWART and MARK FREEMAN
Company Directors in consideration of Docklands Press Pty Ltd granting credit to
COMPLETE PRINT SOLUTIONS Pty. Ltd.
HEREBY JOINTLY AND SEVERALLY guarantee Docklands Press Pty. Ltd. the
due payment of all debts to be paid by the said:
COMPLETE PRINT SOLUTIONS Pty. Ltd.
AND IT IS AGREED that this Guarantee shall be a continuing guarantee and shall not in any way waived or affected by any time or indulgence granted by Docklands Press Pty. Ltd.
DATED this 31ST day of OCTOBER 2012
SIGNED by the said _______________ _______________
_______________ _______________
DIRECTOR WITNESS
_______________ _______________
_______________ _______________
DIRECTOR WITNESS[Emphasis added]
The guarantee was signed by Stewart and Freeman and witnessed by Milburn.
The Case of the Guarantor Stewart
The case of the first defendant is that Stewart guaranteed to pay Docklands Press the liabilities which CPS incurred under the Commercial Credit Account in the event that CPS did not pay such liabilities. He did not guarantee to pay Docklands Press any past or existing indebtedness which had been incurred under the contracted arrangement which existed prior to 31 October 2012.
It was submitted on behalf of Stewart that, by opening of the Commercial Credit Account CPS and Docklands Press entered into a new contractual arrangement which replaced the ad hoc trading relationship between supplier and purchaser which had existed up until 31 October 2012. Prior to 31 October 2012, CPS was not subject to the above terms and conditions of the Commercial Credit Account.
It was further submitted that Stewart had not given any guarantee in relation to whatever liabilities CPS had to Docklands Press for debt incurred in the prior period.
It was also contended that if Stewart is successful on the construction issue, and is only liable for the prospective debt of CPS, that liability is limited to $119,068 together with any accrued interest.
However, on 23 December 2012 Freeman paid Docklands Press $282,000. It was submitted on behalf of Stewart that Freeman paid this in his capacity as a co-guarantor with Stewart by reason that Freeman had no primary liability to pay Docklands Press the debt, and his only obligation was as guarantor. Further, it was submitted that as a co-guarantor with Stewart under the same guarantee, his liability was coextensive with Stewart’s liability. It followed that, if Stewart was not liable for the antecedent debt, neither was Freeman.
It was further submitted that normally, where a payment is made by a debtor to a creditor, the payment goes towards the earliest debt. But the principle in Clayton’s[1] case applies as between creditor (Docklands Press) and debtor (CPS). Here, the payment was not made by the debtor (CPS), but by Freeman in his capacity as co-guarantor.
[1]Devaynes v Noble (‘Clayton's case’) (1816) 35 ER 78.
For these reasons, it was submitted that if Stewart is successful on the construction issue, the payment of $282,000 made by Freeman on 23 December 2012 can only have been made in relation to the debt incurred by CPS after 31 October 2012. Freeman had no liability as guarantor to pay for any debt which CPS had incurred prior to 31 October 2012. For this reason, the payment cannot have been in relation to the antecedent debt of CPS.
It was then said that Freeman did have a liability as guarantor to meet the debts which CPS incurred to Docklands Press after 31 October 2012 and the payment which he made must be taken to be in respect of that debt, and the payment discharged the prospective debt and consequently Stewart’s liability was discharged.
It was noted that this outcome gives rise to the curious consequence that Freeman overpaid Docklands Press by some $160,000. However, it was put that this is a matter between the Plaintiff and the Second Defendant, and has no impact on the case of Stewart.
The Case of the Creditor, Docklands Press
Docklands Press submitted that the ordinary meaning of the words ‘all debts to be paid’ in the Guarantee is unambiguous and relates to both all debts incurred but not yet paid and debts not yet incurred (or paid).
It was noted that the term does not express any limitation, such as: ‘all debts to be incurred’; or ‘excluding past debts’; or ‘debts arising from goods or services to be supplied’.
It was also submitted that this construction produces a commercial business-like result.
In relation to the payment made by Freeman to Docklands Press in the amount of $282,000 on 19 December 2012, it says that at the request of Freeman's solicitor, by email dated 6 June 2013, the payment was applied in part-satisfaction of a Judgment Debt owed by Freeman in respect of a debt owed by CPS.
It says that, in any event, a creditor is entitled to apply any payment to any portion of debts as it chooses.[2]
[2] The Plaintiff relies upon the rule in Devaynes v Noble (Clayton's case) (1816) 35 ER 781, that payments made into a current account applied first of all to the earliest debts (see also National Bank of New Zealand v Macintosh (1881) 3 NZLR 217).
Legal Principles
The relevant principles which may be distilled from the authorities in relation to guarantees are these:
(a)Unless the contract of guarantee is under seal, it must be supported by consideration. Consideration must move from the person to whom the guarantee is given;
(b)It is not necessary for the consideration to appear on the face of the instrument of guarantee;
(c)The parties may specify the consideration in the guarantee document itself. If they do so, they will be bound by their clear statement of the consideration and will not usually be allowed to dispute it;
(d)The Court will examine the guarantee itself in the light of surrounding circumstances, such as the state of the accounts between the parties;
(e)A guarantee given simply for past consideration will be unenforceable;
(f)While a guarantee supported only by past consideration is unenforceable, a guarantee which is supported by present or executory (or future) consideration can secure past debts;
(g)The liability of the surety is strictissimi juris and ambiguous contractual provisions are to be construed in favour of the surety.
An example of the last proposition is OneSteel Trading Pty Ltd v Brassil.[3] The guarantee in OneSteel was expressed to be in consideration of ‘continuing to supply goods to Blue Frame’. At paragraphs [53] to [56] of OneSteel, Hargrave J said:
[3] [2005] VSC 401 [56] (‘OneSteel’).
[53] As I have said, the defendant relied upon a further defence in the event that the Court finds, as I have done, that the guarantee is legally binding. It was argued on behalf of the defendant that, on a proper construction of the guarantee, the defendant did not guarantee the debts of Blue Frame to OneSteel which were incurred prior to the defendant signing the guarantee on 27 March 2003. As a further alternative, it was argued that, on a proper construction of the guarantee, the defendant did not guarantee any debts of Blue Frame existing prior to 2 May 2003 when the offer of the guarantee was accepted by OneSteel.
[54] I reject the arguments put on behalf of the defendant in relation to this issue. In my view, the express terms of the guarantee provide that the defendant must guarantee all of the indebtedness of Blue Frame to the plaintiff for goods and services supplied by the plaintiff to Blue Frame. There is no temporal limit.
[55] The relevant provisions of the guarantee are contained in cll. 1 and 2. By those clauses, the defendant agrees:
‘1. To guarantee to OneSteel the due and punctual payment by the Customer for all goods, materials and/or services that may have been supplied or may in the future be supplied from time to time to the Customer and to indemnify OneSteel for the payment by the Customer of all money which is now payable or may in the future become payable by the Customer to OneSteel in connection with such supply.
2. This guarantee and indemnity is given to OneSteel for the whole of the Customer’s indebtedness or liability to OneSteel for goods, material and/or services supplied or to be supplied to the Customer on any account whatever or however arising and is revocable at any time as to future transactions only by six (6) months’ notice in writing...’ (Emphasis added.)
[56] In my view it is unarguably clear that cll. 1 and 2 of the guarantee provide for the defendant to guarantee the indebtedness of Blue Frame to OneSteel which existed at the date of the guarantee. I note that there is no issue about past consideration. The guarantee is expressed to be in consideration of OneSteel supplying or continuing to supply goods and services to Blue Frame. There is no question that OneSteel continued to supply Blue Frame after the giving of the guarantee.
Two cases decided by the High Court set out the principles to be applied in the construction of guarantees: Ankar Pty Ltd v National Westminister Finance (Australia) Ltd[4] and Andar Transport Pty Ltd v Brambles Ltd.[5]
[4](1987) 162 CLR 549 (‘Ankar’).
[5](2004) 217 CLR 424 (‘Andar’).
In Ankar it was said by the Court that ‘… the liability of the surety was seen to be strictissimi juris and the suretyship contract was construed strictly in his favour’.[6] On this subject the Court said further that ‘At law, as in equity, the traditional view is that the liability of the surety is strictissimi juris and that ambiguous contractual provisions should be construed in favour of the surety’.[7]
[6](1987) 162 CLR 549 [19](Mason ACJ, Wilson, Brennan, Deane and Dawson JJ).
[7](1987) 162 CLR 549 [22].
This observation followed a passage quoted by the High Court derived from In re Sherry, London and County Banking Co. v Terry,[8] and cited with approval by the Privy Council in National Bank of Nigeria Ltd. v Awolesi,[9] where Lord Selbourne said:[10]
A surety is undoubtedly and not unjustly the object of some favour both at law and in equity, and I do not know that the rules of law and equity differ on the subject.
[8](1884) 25 ChD 692 (CA).
[9](1964) 1 WLR 1311, 1316.
[10](1884) 25 ChD 692 (CA) 703.
In Andar, relevant questions for present purposes considered by the High Court were whether the principles governing construction of contracts of guarantee also govern the construction of contracts of indemnity and whether the indemnity clause under consideration in that case should be construed in favour of the indemnifier.
The Court in Andar reiterated the principle of construction spelled out in Ankar:[11]
The proper construction of cll 8.2.2 and 8.2.3 cannot be undertaken without reference to the principles of construction applicable to contractual indemnities. The starting-point is the decision of this Court in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd. In that case, the Court considered whether two clauses of a guarantee operated as conditions the breach of which would discharge the surety from liability. In answering that question in the affirmative, Mason ACJ, Wilson, Brennan and Dawson JJ said:
‘At law, as in equity, the traditional view is that the liability of the surety is strictissimi juris and that ambiguous contractual provisions should be construed in favour of the surety. The doctrine of strictissimi juris provides a counterpoise to the law's preference for a construction that reads a provision otherwise than as a condition. A doubt as to the status of a provision in a guarantee should therefore be resolved in favour of the surety’.
In Chan v Cresdon Pty Ltd, Mason CJ, Brennan, Deane and McHugh JJ described the statement in Ankar set out above as evidencing a ‘settled principle governing the interpretation of contracts of guarantee’.
[11][20] Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.
Application of the Principles to the Guarantee
In the present case, I find that the Guarantee is supported by consideration. The guarantee is expressed to be in consideration of Docklands Press ‘granting credit to’ CPS. Docklands Press continued to grant credit to CPS after the giving of the Guarantee.
However, as to the construction of the Guarantee in this case, it stands in contrast to the guarantee considered in OneSteel. As Hargrave J found, it was ‘unarguably clear’ in that case that the relevant clauses of the guarantee provided for the defendant to guarantee the indebtedness of Blue Frame to OneSteel which existed at the date of the guarantee. This was made clear by the use of expressions which extended the guarantee to ‘goods ... that may have been supplied or may in the future be supplied’; and to indemnify ... ‘for the payment by the Customer of all money which is now payable or may in the future become payable by the Customer’; and to ‘the whole of the Customer’s indebtedness or liability ... for goods, material and/or services supplied or to be supplied to the Customer’. The text of the guarantee in OneSteel was unambiguous.
The text of the Guarantee in the present case enjoys no such virtue. It merely states that the Guarantee applies to ‘the due payment of all debts to be paid [to the supplier] by the said’ customer. This is capable of being construed either as a guarantee of all debts incurred in the future which are to be paid, or as a guarantee of all debts incurred in the future which are to be paid and of all debts which have been incurred in the past but which remain unpaid at the time of entry into the Guarantee. The Guarantee in this case contains no such clarity as the guarantee considered in OneSteel.
I find that the text of the Guarantee in this case is ambiguous.
In arriving at this conclusion I have taken into account not only the text of the relevant Guarantee, but also the surrounding circumstances known to the parties, and the purpose and object of the transaction:[12] (cited with approval by the Court of Appeal in Henderson-Smart v Quality Blow Moulders Pty Ltd). [13]
[12]Secured Income Real Estate (Australia) Ltd v St Martin Investments Pty Ltd(1979) 144 CLR 596, 606 (Mason J).
[13](2010) 25 VR 724, 726 [11].
It was put on behalf of the First Defendant, Stewart, that by the opening of the Commercial Credit Account is CPS and Docklands Press entered into a new contractual arrangement which ‘replaced the ad hoc trading relationship between supplier and purchaser which had existed up until 31 October 2012’.
However, the evidence does not establish that the terms and conditions of the pre-31 October 2012 trading between CPS and Docklands Press, as reflected in the terms and conditions printed on the quotations issued by Docklands Press from time to time, were any different to the terms of the Commercial Credit Account.
Mr Stewart was called to give oral evidence. He described the trading procedure between CPS and Docklands Press as it was prior to 31 October 2012. For each of the hundreds of invoices which CPS received from Docklands Press up until 31 October 2012 there was an earlier quotation from Docklands Press for particular work. This would be followed by purchase orders and eventually the supply of the goods or services, followed by an invoice from Docklands Press invoicing for the work done and seeking payment. This process continued to operate after 31 October 2012.
There are terms set out on the quotations sent by Docklands Press. However, Mr Stewart was not able to say whether there was any change to those terms after 31 October 2012.
Clause 2.2 of the Commercial Credit Account provided:
The agreement between the Supplier and the Purchaser in relation to the supply of Goods will comprise the Quotation (if any) and these terms and conditions, to the entire exclusion of any terms and conditions of the Purchaser (whether set out in a purchase order, confirmation of order or any other document).
[Emphasis added]
The reference to the trading terms between the parties comprising ‘the Quotation (if any)’ in addition to ‘these terms and conditions’ points to the possibility that there were some differences between the terms contained in the Docklands Press quotation and the Commercial Credit Account.
However, no sample quotation was produced and the Court is not in a position to determine this issue on the evidence before it.
Nevertheless, two things are plain: prior to 31 October 2012 there was no written contract which governed the trading relationship between CPS and Docklands Press overall (as opposed to what appears to be a series of separate contracts which related to the supply particular packages of goods and services); and prior to that date there was no guarantee in place in relation to the liabilities of CPS to Docklands Press.
What occurred after 31 October 2012 was that the parties, being CPS, Docklands Press, Stewart and Freeman, entered into a new legal relationship. The Commercial Credit Account, and its accompanying Guarantee, were put in place to govern the trading relationship between CPS and Docklands Press overall. They applied to all trading transactions between the parties after 31 October 2012.
This contractual context, which was known to all relevant parties, tends to support the ambiguity in the text of the Guarantee which I have found.
The precise object and purpose of this Guarantee is not able to be discerned in any way which assists in its construction, one way or the other.
Accordingly, construing the guarantee strictissimi juris, and having found the ambiguity, it must be construed in favour of the guarantor Stewart. I find that the Guarantee secures in favour of Docklands Press only the debts incurred by CPS after 31 October 2012, and that Stewart’s liability as guarantor is limited to securing those debts.
The Payment Made by Freeman
I reject the contention advanced on behalf of Stewart that the payment of $282,000 made by his co-guarantor Freeman on 23 December 2012 in effect discharged Stewart’s liability under the Guarantee.
The payment made by Freeman on 23 December 2012 was merely by way of an advance to Docklands Press. This is evidenced by an email dated 6 June 2013 from Freeman's solicitor to Dockland’s solicitor.
It is common ground that on or about 4 June 2013 the Plaintiff, Docklands Press, entered judgment against the First Defendant, Stewart, and the Second Defendant, Freeman, in the amount of $970,753.40 together with interest of $100,405.15 and costs of $3,300.00. The judgement was a default judgment obtained in default of defences being served in accordance with the Rules of Court. The judgment against Stewart was later set aside, but the judgment against Freeman remains in place.
At the request of Freeman's solicitor, as reflected his email dated 6 June 2013, Freeman’s payment by way of the advance was applied in part-satisfaction of the Judgment Debt owed by Freeman in respect of a debt owed by CPS. The payment related to the whole of the debt owed by CPS incurred both prior to and subsequent to the execution of the Guarantee executed on 31 October 2012. No release has been given to Freeman. Freeman’s payment was made in part payment of the Judgment Debt.
In any event, a creditor is entitled to apply any payment to any portion of debts as it chooses. The law was stated in the Court of Chancery by Sir William Grant MR in Devaynes v Noble (Clayton's case) in the following terms: [14]
… where there are debtor and creditor, and the debtor owes more than one debt, and pays a sum of money, he has a right to direct to which of the debts that payment shall be applied; and, if he omits to do so, then the law implies that it is immaterial to him to which the payment is applied, and, by his omission, he has left the application to the option of the creditor; and again, that, if the creditor neglects to exercise that option, still the application may be regulated by circumstances.
[14]Devaynes v Noble (Clayton's case) (1816) 35 ER 781, that payments made into a current account apply first to the earliest debts. See also National Bank of New Zealand v Macintosh (1881) 3 NZLR 217.
Accordingly, in the absence of any agreement between Docklands on the one part and Stewart and Freeman on the other, that payments made under the Guarantee are to be applied first to debts incurred after the execution of the Guarantee, Docklands Press is entitled to apply the payment of $282,000 to the oldest debts of CPS.
Orders
There should be judgment entered against the First Defendant for $119,068 together with interest, presently calculated in the sum of $21,187.
I will hear the parties on the question of costs and the precise terms of the Judgment which should be entered, taking into account any interest which has accrued to the date of entry of judgment.
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