Flexirent Capital Pty Ltd v Mills

District Court

New South Wales

Medium Neutral Citation:	Flexirent Capital Pty Ltd v Mills [2020] NSWDC 259
Hearing dates:	12, 13, 14 and 19 February 2020
Date of orders:	19 February 2020
Decision date:	19 February 2020
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Proceedings dismissed. (2)   Plaintiff to pay the defendant's costs. (3)   Note that for some period of the proceedings, the defendant was self-represented and the defendant during that period is not entitled to any time-based costs.
Catchwords:	GUARANTEE AND INDEMNITY — contract of guarantee — construction – whether guarantee extends to later signed contracts – whether guarantee extends to later unsigned contracts
Cases Cited:	Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Rava v Logan Wines & Anor [2007] NSWCA 62 Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166
Category:	Principal judgment
Parties:	Flexirent Capital Pty Ltd (plaintiff) Nicola Fay Mills (defendant)
Representation:	Counsel: Ms S Jeliba (plaintiff)   Solicitors: Bridges Lawyers (plaintiff)
File Number(s):	2017/145634
Publication restriction:	None

Judgment

A.  Introduction

1. Flexirent Capital Pty Ltd sues Nicola Mills on a guarantee for the debts of Wasabi Property Holdings Pty Ltd.  Ms Mills, appearing self‑represented, admits that Wasabi has debts to Flexirent, and admits she signed the guarantee, but asserts that the guarantee does not extend to the debts the subject of the claim.

B.  The issues

2. At the commencement of the hearing, Ms Mills informed the Court that the only matter in dispute was whether the guarantee relied upon by Flexirent covered all the debts Flexirent sought to recover.  Thus, neither the liability of Wasabi nor the amount of its debts was disputed.  The only issue was whether, by the guarantee signed by Ms Mills, she guaranteed the debts of Wasabi claimed by Flexirent in the proceedings.

C.  Background

3. As the words of the guarantee must be construed in the light of the surrounding circumstances,[1] the background to the guarantee should be summarised.

   1. Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 at [46]-[47].

4. On 12 December 2011 Ms Mills signed a document headed "Guarantee of Master Rental & Finance Lease Facility" [2] (called in this judgment the "Pacific Retail Guarantee").  The "Customer" was named as Pacific Retail Corporate Pty Ltd.  Ms Mills was a director of Pacific Retail at the time, and a co‑guarantor.  Flexirent signed the Pacific Retail Guarantee on 18 January 2012. The Pacific Retail Guarantee is not the guarantee sued upon by Flexirent in these proceedings.

   2. See Exhibit C at Plaintiff’s Hearing Bundle (“PHB”), p 131.

5. The terms of the Pacific Retail Guarantee were as follows:

“1. Since you will sign the rental or finance lease agreement (the Agreement) because we asked you to, we guarantee:

a) payment of amounts owing by the Customer to you under the Agreement; and

b) performance of the Customer of its obligations under the Agreement.