Kearney v Grow Choice Pty Ltd

[2023] NSWCA 325

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kearney v Grow Choice Pty Ltd [2023] NSWCA 325

Hearing dates:

13 December 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Before:

Meagher JA at [1];
Mitchelmore JA at [2];
Basten AJA at [3]

Decision:

(1)   Grant the applicant leave to appeal from the judgment and orders in the District Court of 2 June 2023.

(2)   Grant leave to the appellant to file and rely on the amended notice of appeal annexed to the notice of motion dated 12 December 2023, and direct the appellant to file the amended notice of appeal by 12 January 2024.

(3)   Allow the appeal and –

(a)   set aside so much of order (1) made in the District Court as gave judgment for the plaintiff against the second defendant;

(b)   set aside order (4) with respect to the liability of the second defendant for the costs of the first defendant; and to the extent that it covered the plaintiff’s claim with respect to the second defendant;

(c)   dismiss the amended statement of claim in so far as it claimed relief against the second defendant.

(4)   If either party seeks costs of the trial, it may do    so by a motion filed by 2 February 2024.

(5)   Order that the respondent pay the applicant/appellant’s costs in this Court.

Catchwords:

APPEAL – application for leave – amount under threshold – whether challenge more than merely arguable – applying arguability criterion on a concurrent hearing – application by party not bearing onus of proof – no challenge to findings of primary fact

GUARANTEE AND INDEMNITY – contract of guarantee – oral undertaking by principal of debtor company – repeated undertakings – contractual intention – implied contingent agreement – consideration – forbearance – continuing to trade

Legislation Cited:

District Court Act 1973 (NSW), s 127

Cases Cited:

Ye v Chen [2022] NSWCA 219

Edlin v Williams [1998] QCA 439; [2000] ANZ Conv R 43

Crears v Hunter (1887) 19 QBD 341

Category:

Principal judgment

Parties:

Simon Peter Kearney (Applicant)
Grow Choice Pty Ltd (Respondent)

Representation:

Counsel:
J Mack (Applicant)
A E Hopkins (Respondent)

Solicitors:
Jarratt Webb & Barrett (Applicant)
Rural Law (Respondent)

File Number(s):

2023/208516

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

2 June 2023

Before:

SJ Gibb DCJ

File Number(s):

2021/283955

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Simon Peter Kearney, was the principal of North West Direct Sales Pty Ltd (North West), a retailer of agricultural chemicals in Tamworth. The respondent, Grow Choice Pty Ltd, was a wholesale supplier of agricultural chemicals. In January 2015, Grow Choice entered into an agreement with North West, whereby the latter would store agricultural products provided by Grow Choice. The products would either be on-sold by Grow Choice or by North West. Grow Choice was to pay a handling fee and North West would account to Grow…