Puma Energy (Australia) Fuels Pty Ltd v Dengold Holdings Pty Ltd
[2020] WADC 38
•9 APRIL 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PUMA ENERGY (AUSTRALIA) FUELS PTY LTD -v- DENGOLD HOLDINGS PTY LTD [2020] WADC 38
CORAM: STONE DCJ
HEARD: 1 OCTOBER 2019
DELIVERED : 9 APRIL 2020
FILE NO/S: CIV 3782 of 2017
BETWEEN: PUMA ENERGY (AUSTRALIA) FUELS PTY LTD
Plaintiff
AND
DENGOLD HOLDINGS PTY LTD
First Defendant
PHILLIP PANOMARENKO
Second Defendant
Catchwords:
Credit contract - Guarantee - Supply contract - Construction and interpretation - Continued supply - Liability for non-payment - Inferences from business records
Legislation:
Nil
Result:
The plaintiff's claim against the first defendant and the second defendant was allowed
Representation:
Counsel:
| Plaintiff | : | Ms J Henderson |
| First Defendant | : | Mr P Lafferty |
| Second Defendant | : | Mr P Lafferty |
Solicitors:
| Plaintiff | : | CLI Lawyers |
| First Defendant | : | Armeli & Molony Lawyers |
| Second Defendant | : | Armeli & Molony Lawyers |
Case(s) referred to in decision(s):
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145
STONE DCJ:
Introduction
The plaintiff, Puma Energy (Australia) Pty Ltd claims against the first defendant, Dengold Holdings Pty Ltd and the second defendant, Mr Phillip Panomarenko $200,532.79 for the cost of fuel supplied by Puma to Dengold Holdings and payment guaranteed by Mr Panomarenko.
Issues not in dispute
Mr Panomarenko is the director and secretary of Dengold Holdings.
In or about June 2012 Dengold Holdings agreed to purchase from a third party the business trading as Donnybrook Fruit Barn located on South Western Highway, Donnybrook in the state of Western Australia.
Donnybrook Fruit Barn sold, among other things, fuel and the third party agreed to assign its rights and interest in a fuel supply agreement with Puma to Dengold Holdings.
In or about July 2012 a Mr Ray Richardson, on behalf of Puma, attended Donnybrook Fruit Barn and provided to Mr Panomarenko for Dengold Holdings a document titled 'Commercial Trade Supply Agreement'.
Mr Richardson stated to Mr Panomarenko that a further 'Supply Agreement' would be provided prior to settlement of Donnybrook Fruit Barn in August 2012 which would require a bank guarantee, but in the meantime Dengold Holdings would need to enter into the 'Commercial Trade Supply Agreement'.
The settlement of Donnybrook Fruit Barn occurred in late August 2012. The Agreement for Sale of Donnybrook Fruit Barn provided for 'possession on completion of the counting of the stock on 19 August 2012, the date of possession' and payment of 'the balance of the purchase price … on 20 August 2012, the date of settlement'.
On or about 28 July 2012 the sections titled 'Account Details', 'Customer Details' and 'Direct Debit' in the document titled 'Commercial Trade Supply Agreement' by which Dengold Holdings applied to Puma for credit accommodation for the supply of fuel were completed by hand by reference to Mr Panomarenko and Dengold Holdings and executed by them (the July Credit Agreement). On 28 July 2012 Mr Panomarenko as guarantor executed the guarantee form in the July Credit Agreement in consideration of Puma granting credit to Dengold Holdings (the Guarantee).
On 20 August 2012 Puma and Dengold Holdings executed the document titled 'Supply Agreement' whereby Puma agreed to supply fuel to Dengold Holdings and Dengold Holdings agreed to purchase fuel from Puma for Dengold Holdings' resale at Donnybrook Fruit Barn (the August Supply Agreement).
Issues in dispute
1.Whether after Puma and Dengold Holdings entered into the August Supply Agreement, the Direct Debit section in the July Credit Agreement was updated by someone by hand to '20 August 2012' to reflect the date on which the August Supply Agreement was executed.
2.Whether the July Credit Agreement was accepted by Puma.
3.Whether the July Credit Agreement was a separate agreement from the August Supply Agreement.
4.Whether the July Credit Agreement terminated upon the parties entering into the August Supply Agreement.
5.The effect of the July Credit Agreement and the August Supply Agreement.
6.The effect of the expiration of the August Supply Agreement on 31 May 2014.
7.Whether Puma continued to supply fuel to Dengold Holdings between 1 August 2015 and 21 September 2015 and if so, on what basis.
8.Whether Puma delivered fuel to Dengold Holdings between 1 August 2015 and 21 September 2015, and if so what quantity was delivered.
9.Whether Dengold Holdings and/or Mr Panomarenko were liable for the payment of any fuel delivered by Puma to Dengold Holdings between 1 August 2015 and 21 September 2015, and if so on what basis.
The evidence
Puma called no witnesses at trial but relied primarily upon the content of photocopy business records, pursuant to s 79C(2a)(a) of the Evidence Act 1906 (WA), to establish its case which may be briefly summarised as follows:
1.In July/August 2012 Puma agreed to supply fuel to Dengold Holdings at Donnybrook Fruit Barn in exchange for money. The contract between the parties as entered in July/August 2012 was in two parts, namely a credit agreement (the July Credit Agreement) and a supply agreement which was on the terms and conditions assigned by the third party (the August Supply Agreement);
2.The parties agreed that the money did not have to be paid upfront for the fuel, ahead of delivery, but would be invoiced on delivery and due as at the date specified on the invoice;
3.Mr Panomarenko expressly guaranteed payment to Puma of all money owing to Puma by Dengold Holdings;
4.Puma and Dengold Holdings continued trading after the expiration of the August Supply Agreement on 31 May 2014 on the same terms and conditions of that contract;
5.In the period 1 August 2015 to 21 September 2015 Puma supplied Dengold Holdings with $200,532.79 worth of fuel in 12 separate deliveries;
6.Puma sent Dengold Holdings 12 invoices detailing the dates and quantities of the supply and the amounts charged;
7.Dengold Holdings did not pay for the fuel that Puma supplied; and
8.In breach of the Guarantee Mr Panomarenko did not pay the outstanding invoices.
Puma tendered in its case the following documents:
1.A photocopy of the July Credit Agreement;
2.A photocopy of the August Supply Agreement;
3.A photocopy of the bundle of tax invoices dated between 1 August 2015 and 21 September 2015;
4.A photocopy of the email chain of the exchange between Mr Panomarenko and a Ms Rhonda Raw of Puma forwarded under cover email dated 16 February 2016; and
5.A photocopy of the Statement dated 26 August 2015 of Puma's account with Dengold Holdings for invoices between 23 July 2015 and 22 August 2015 (discovered from the defendants' documents).
Dengold Holdings and Mr Panomarenko called no witnesses at trial and essentially put Puma to proof of its case. A photocopy of the letter dated 16 January 2014 from Puma to Dengold Holdings concerning the expiration of the Supply Agreement and the offer of a new supply agreement was tendered as part of their case.
Principles of construction
In Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145 at [8] to [11] Quinlan CJ stated the following general principles with respect to the construction of commercial contracts and guarantees:
8The general principles in relation to the construction of commercial contracts are not contentious. In particular, as the plurality in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd confirmed, the meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean.
9This is, of course, an objective exercise, which 'depends on finding the meaning of the language of the contract' and 'what each party by words and conduct would have led a reasonable person in the position of the other party to believe'. As French CJ, Nettle & Gordon JJ observed in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd:
The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
10Clearly the terms and conditions of the 2009 Credit Application, being referred to in the 2009 guarantee, form part of the context for interpreting the provisions of the 2009 guarantee.
11Moreover, being a contract of guarantee, the construction of the 2009 guarantee is also governed by the settled principle that a doubt as to the construction of a provision in such a contract should be resolved in favour of the surety or indemnifier. Such a doubt may arise not only from the uncertain meaning of a particular expression but from 'its apparent width of possible operation'.
(footnotes omitted)
Findings
The July Credit Agreement
The July Credit Agreement was in a form provided by Puma and bearing the name 'Ausfuel Gull' (Puma) in the header.
On its face, the July Credit Agreement was made between the following parties:
1.'The Customer' is Mr Panomarenko trading as (Donnybrook) Fruit Barn which commenced business on 20 August 2012. The Customer's 'parent company' is Dengold Holdings. The customer signatory details describe Mr Panomarenko as 'owner/director' and the company signature section has been executed by Dengold Holdings.
2.'The Distributor' is Australian Fuel Distributors Pty Ltd (Puma).
3.'The Guarantor' is Mr Panomarenko.
Although the documentation is dated 28 July 2012, the date '20 August 2012' has been inserted by someone by hand in the section titled 'Direct Debit' so that it reads:
I/we request that monies due in terms of the repayment arrangements contained in the Commercial Trade Supply Agreement made between the Customer and Australian Fuel Distributors Pty Ltd on 20 August 2012 be drawn under the direct debit system.
In my view this could only be a reference to the August Supply Agreement made between Puma and Dengold Holdings on 20 August 2012 as there is no evidence of any other agreement executed by the parties on that date. I also note that the date '20 August 2012' has been inserted by someone by hand in the section titled 'Account Details' as the date business commenced.
On the available evidence which consists only of a photocopy of the July Credit Agreement, and in the absence of any oral evidence whatsoever, I am unable to determine by examination of the photocopy documentation or otherwise by whom the two '20 August 2012' dates were inserted, whether that was done by the same hand, whether that occurred at the same time, whether that was done on or after 28 July 2012, or whether that was done on or after 20 August 2012. However, I am satisfied for the reasons stated above that the insertion of the date in the Direct Debit section was done to reflect the parties' execution and completion of the August Supply Agreement on 20 August 2012. I am also satisfied that the insertion of the date in the Account Details section was done to indicate the commencement of Donnybrook Fruit Barn business on 20 August 2012.
There is no evidence whatsoever to support the defendants' counsel's contention that the date '20 August 2012' was unilaterally inserted by Puma in the 'Direct Debit' section of the July Credit Agreement. The defendants' counsel could have called Mr Panomarenko to say it was not done by him, if that was the case.
I accept the submission by the plaintiff's counsel that on its face, the July Credit Agreement appears to be a standard form credit application for a line of credit for the supply of fuel. The purpose of it is clear from its content. The account details specify an estimated value of monthly purchases of $25,000. That section contains a footnote to the effect that if a monthly value of less than $10,000 is specified a Direct Debit Form must be completed. There is an indication that when placing an order a Purchase Order is not required, and that a National Ausfuel Card is applied for.
Schedule 1 to the July Credit Agreement sets out the terms and conditions. These are divided into subsections with the following titles: Acceptance, Credit Limit, Provision of Credit, National Ausfuel Card, Charges, Payment, Termination, Variation, Waiver, Time Of The Essence, Proper Law, Reservation Of Title To Goods, Personal Property Securities Act, Account Keeping Fee, Liability For Delivery, Severability, Notices.
The balance of clauses in Schedule 1 indicate that the terms and conditions are those of a credit facility. The clearest indication that this document is a credit facility is the content of the termination clause which reads:
Either party may terminate the credit arrangement at any time by notice to the other in writing. Upon termination, all amounts will become due and payable immediately.
The July Credit Agreement is clearly an agreement for the extension of credit and the terms and conditions on which credit is extended.
The August Supply Agreement
On its face, the August Supply Agreement was made between Australian Fuel Distributors Pty Ltd (Puma) as 'the Supplier' and Dengold Holdings as 'the Retailer'.
The August Supply Agreement was for the supply of fuel from 20 August 2012 until 31 May 2014. Under that agreement property in the fuel passed from Puma to Dengold Holdings at the time that it passed from Puma's delivery truck to the fuel tanks at Donnybrook Fruit Barn. Dengold Holdings must pay for all fuel purchased from Puma within seven days of delivery. Dengold Holdings must place its individual orders of fuel by facsimile, phone or email at least 48 hours before the required day of delivery or as directed by Puma from time to time. The August Supply Agreement made no provision for what was to occur upon its expiration.
Was the July Credit Agreement accepted by Puma?
The defendants' counsel submits that the mere fact that Dengold Holdings signed the July Credit Agreement did not give rise to a binding contract between the parties on 28 July 2012 because there was no evidence of acceptance by Puma.
I note that the defendants' pleadings do not expressly plead that Puma was put to proof that the July Credit Agreement was in fact accepted by Puma. This arose as an issue at trial.
The necessity of Puma's acceptance is indicated beneath the Customer Details section of the July Credit Agreement which reads:
I/We have read and understood the Terms and Conditions (Schedule 1) … I/We agree that, subject to (Puma's) acceptance of the Application, the Terms and Conditions … will apply to the provision of credit as a result of the acceptance of this Agreement by (Puma).
Clause 1 of the Terms and Conditions in Schedule 1 of the July Credit Agreement provides that Puma was able to accept 'this Agreement' by notice in writing or by extending credit.
In my view, Puma by its conduct accepted the July Credit Agreement to supply fuel to Dengold Holdings on credit and the credit relationship was ongoing from August 2012. This is a reasonable inference to be drawn from the combination of:
1.the evidence that the Direct Debit section of the July Credit Agreement included reference to the August Supply Agreement;
2.the evidence of Puma's and Dengold Holdings' execution of the August Supply Agreement;
3.the evidence of the Statement dated 26 August 2015 of Puma's account with Dengold Holdings for invoices between 23 July 2015 and 22 August 2015 indicated that Puma advanced credit to Dengold Holdings in the terms set out in clauses 3 and 10 of the Terms and Conditions in Schedule 1 of the July Credit Agreement, in that Puma provided fuel to Dengold Holdings without requiring upfront or contemporaneous payment, and allowed Dengold Holdings to accrue amounts owing under the invoices which were each due on the 14th day of the following month; and
4.the evidence of the tax invoices dated between 1 August 2015 and 21 September 2015 indicated that Puma advanced credit to Dengold Holdings in the terms set out in clauses 3 and 10 of the Terms and Conditions in Schedule 1 of the July Credit Agreement.
Was the July Credit Agreement a separate agreement from the August Supply Agreement?
Was the July Credit Agreement terminated upon the parties entering into the August Supply Agreement?
The defendants' counsel contends that the terms and conditions of the July Credit Agreement were excluded by virtue of the operation of the August Supply Agreement.
Clause 22 of the August Supply Agreement provides that '… this Agreement contains all of the terms and conditions and warranties expressed or implied between … and any other terms and conditions or warranties not contained in this Agreement are hereby expressly excluded.'
I accept the entirety of the submission by the plaintiff's counsel that clause 22 does not displace or exclude the July Credit Agreement for the following reasons.
Firstly, the clause appears under the heading 'No Inducement To Enter Agreement'. Whilst the headings are provided for reference and not interpretation, the content of the clause is consistent with it being 'a no inducement clause'. It specifies that Mr Panomarenko is not relying on any inducements, representations or warranties that are not contained in the August Supply Agreement.
Secondly, Clause 22 does not expressly or impliedly exclude the possibility of bank details being provided in a separate document, and the contract expressly allows for a Guarantee to be entered into separate to the August Supply Agreement.
Thirdly, the only Guarantee provided by or on behalf of Dengold Holdings or Mr Panomarenko is that which is contained in the July Credit Agreement. It is most unlikely that the August Supply Agreement would have excluded the existing Guarantee without replacement, and without any express statement to that effect.
Fourthly, clauses 15.1 and 23.1(c) of the August Supply Agreement foreshadow the possibility of further agreements between the parties. It does not appear that clause 22 is to the effect that the parties will not enter into any separate contract with each other, or that the August Supply Agreement must be amended to allow for any external agreement.
Fifthly, the Direct Debit section of the July Credit Agreement is dated 20 August 2012, the same date that the parties executed the August Supply Agreement. As I stated above this appears to have been done to reflect the parties' execution and completion of the August Supply Agreement on 20 August 2012 and reliance by the parties upon the July Credit Agreement as a current direct debit agreement relating to the August Supply Agreement.
Sixthly, the July Credit Agreement, being a credit contract, is not a term or clause of the agreement contained in the August Supply Agreement. It is a separate agreement between the parties serving the separate purpose of establishing and guaranteeing a line of credit. Although it was clearly intended to facilitate the business relationship the subject matter of the August Supply Agreement it is not correctly described as a term, condition or warranty of the August Supply Agreement.
I also accept plaintiff's counsel's submission that the July Credit Agreement could not have had any practical effect prior to the date of the August Supply Agreement because possession of Donnybrook Fruit Farm was not anticipated to occur prior to 20 August 2012. The assignment of the terms of the August Supply Agreement was also clearly anticipated prior to completion of the July Credit Agreement.
In the circumstances, the reasonable inference to be drawn is that the July Credit Agreement and the August Supply Agreement were intended to serve different purposes and as such were able to co‑exist notwithstanding the 'entire agreement' clause in the August Supply Agreement.
The effect of the July Credit Agreement and the August Supply Agreement.
The effect of the expiration of the August Supply Agreement on 31 May 2014.
Whether Puma continued to supply fuel to Dengold Holdings between 1 August 2015 and 21 September 2015 and if so, on what basis.
Whether Puma delivered fuel to Dengold Holdings between 1 August 2015 and 21 September 2015, and if so what quantity was delivered.
Whether Dengold Holdings and/or Mr Panomarenko were liable for the payment of any fuel delivered by Puma to Dengold Holdings between 1 August 2015 and 21 September 2015, and if so on what basis.
The combined effect of the July Credit Agreement and the August Supply Agreement is that firstly, Puma and Dengold Holdings entered into a written contract on 28 July 2012 by which Puma agreed to supply fuel to Dengold Holdings without upfront payment and Dengold Holdings agreed to pay Puma for the fuel supplied on receipt of Puma's invoice, on the appended terms and conditions; and secondly, Puma and Dengold Holdings entered into a further written contract on 20 August 2012 by which Puma agreed to supply fuel to Dengold Holdings for Dengold Holdings' resale at Donnybrook Fruit Farm and Dengold Holdings agreed to purchase fuel exclusively from Puma for Dengold Holdings' resale at Donnybrook Fruit Farm.
When the August Supply Agreement expired on 31 May 2014 Puma continued to supply fuel to Dengold Holdings and Dengold Holdings continued to purchase fuel from Puma on the basis of their existing trading relationship. This is a reasonable inference to be drawn from the combination of:
1.the admission in the defendants' pleadings in par 18(b) that 'between August 2015 and October 2015 … the plaintiff delivered products to the first defendant …';
2.the admission in the defendants' pleadings in par 18(d) that '… the plaintiff continued to supply products to the first defendant';
3.the evidence of the letter dated 16 January 2014 from Puma to Dengold Holdings concerning the expiration of the Supply Agreement and the offer of a new supply agreement;
4.the evidence of the tax invoice dated 1 August 2015 that fuel was delivered and the date of delivery;
5.the evidence of the tax invoices dated between 1 August 2015 and 21 September 2015;
6.the evidence of the Statement dated 26 August 2015 of Puma's account with Dengold Holdings for invoices between 23 July 2015 and 22 August 2015 together with the notation on it about part payment of invoices by Dengold Holdings by Bpay on 29 August 2015 and 31 August 2015;
7.the evidence of the email chain of the exchange between Mr Panomarenko and a Ms Rhonda Raw of Puma forwarded under cover email dated 16 February 2016 in which Mr Panomarenko acknowledged on 7 October 2015 (Puma's) 'email re outstanding fuel account' and when he would 'attempt to resolve the debt'; and
8.there being no evidence of any written notification of a dispute as to the quantum or fact of a delivery. It was an express term of the July Credit Agreement that if Dengold Holdings did not notify Puma in writing within 14 days of delivery then Puma would be deemed to have complied with Dengold Holdings' order in all respects.
I observe that the essential emails exchanged between Mr Panomarenko and Ms Raw were about three weeks after the tax invoice of 21 September 2015 and about two months after the Statement dated 26 August 2015 of Puma's account with Dengold Holdings for invoices between 23 July 2015 and 22 August 2015.
In his email dated 7 October 2015 at 8.33 am Mr Panomarenko wrote:
Thankyou for your email re outstanding fuel account. As previously advised could you please refrain from sending emails to [email protected] as we are no longer contactable at this address. As you are fully aware this business was sold on the 23rd of September.
We also advised we would be away and uncontactable for a short period of time. We also advised that the accounts were being reviewed by our accountant and we would advise at our earliest possible time of the outcome of the financial position of the company and it's (sic) creditors.
We are still reviewing this process.
We would also like to point out that we have been uncontactable for the last 7 days which is why we have been unable to address your concerns at this stage.
We are returning to Perth on the 9th of October and will be in touch on Monday the 12th of October to attempt to resolve the debt.
In her email dated 7 October 2015 at 12.27 pm Ms Raw wrote:
As per the Letter of Demand you have five (5) days to have this account paid in full before further action will be taken.
Please note that the demand is for only what is currently overdue, and that as of the 14th October 2015 the September account of $101,804.76 will be due for payment.
Therefore bringing your account owing to Puma (Ausfuel) to: $200,532.79.
In his email dated 8 October 2015 at 9.47 am AEDT Mr Panomarenko wrote:
Thankyou for your reply. As stated in my email we will be addressing Puma and other creditor payments on our return. If action is forthcoming please advise as Puma will give me no alternative than to commence putting the company into voluntary (sic). It would be our preferred option however to attempt to resolve this situation to the benefit of all concerned. Could you also provide me with an email copy of Dengolds current supply agreement with Puma.
In his email dated 8 October 2015 at 6.50 am AWST Mr Panomarenko wrote:
Sorry should have read voluntary administration.
In the circumstances, I am satisfied on the totality of the evidence that Puma has established on the balance of probabilities that fuel was delivered to Dengold Holdings and purchased by Dengold Holdings on the dates and in the quantum stated in the tax invoices dated between 1 August 2015 and 21 September 2015 but not paid for by Dengold Holdings.
The Guarantee
Mr Panomarenko was the guarantor and signatory to the Guarantee contained in the July Credit Agreement.
The Guarantee is set out in clear, plain and unambiguous terms.
In consideration of 'the Distributor' (Puma) granting a credit facility to 'the Customer' (Dengold Holdings), 'the Guarantor' (Mr Panomarenko) 'enters this Guarantee and agrees with (Puma) as follows:
1.2(a)to guarantee to (Puma) the due and punctual performance of all obligations owed by (Dengold Holdings) to (Puma) and the payment of by (Dengold Holdings) for goods, services and/or materials as may have been supplied or may in the future be supplied from time to time by (Puma) at the Debtor's request and to be answerable and responsible to (Puma) for the payment by (Dengold Holdings) of all moneys which are now payable or may become payable by (Dengold Holdings) to (Puma);
1.2(b) (Mr Panomarenko) hereby indemnifies (Puma) against any and all losses and expenses including legal costs on a solicitor/client basis … arising from any default whatsoever on the part of (Dengold Holdings) under its contract with (Puma) for goods or services the intent being that (Mr Panomarenko) is primarily liable for (Dengold Holdings') indebtedness to (Puma);
1.2(c)(Mr Panomarenko) shall pay to (Puma) all money actually or contingently owing to (Puma) now or in the future pursuant to this Guarantee … ; and
1.2(d)this Guarantee shall be a continuing Guarantee and shall not be in any way waived or affected by at any time or indulgence given or any variation or alteration of the Conditions of Sale … or by reason of the insolvency of (Dengold Holdings) or the obligation of (Dengold Holdings) to (Puma) being abrogated, affected, extinguished, void or unenforceable.'
Clause 1.3 of the Guarantee states:
If any of the Terms and Conditions of this Agreement … are not enforceable against (Dengold Holdings) for any reason (Mr Panomarenko) indemnify (Puma) for any loss it may suffer as a result. That loss includes all matters that would have been payable by (Dengold Holdings) had the Terms and Conditions of the Agreement been fully enforceable against (Dengold Holdings).
By the Guarantee Mr Panomarenko assumed responsibility for the due and punctual payment by Dengold Holdings for fuel that had been or would be supplied by Puma under their existing trading relationship and whilst the credit facility remained in place; Mr Panomarenko indemnified Puma against damages arising from any default by Dengold Holdings; and Mr Panomarenko expressly agreed to pay Puma all money actually or contingently owing to Puma Dengold Holdings.
On its face, the Guarantee was for the purposes of the credit facility provided by Puma to Dengold Holdings under the July Credit Agreement for their trading relationship pursuant to the August Supply Agreement. For the reasons stated in [43] to [49] when the August Supply Agreement expired on 31 May 2014 Puma continued to supply fuel to Dengold Holdings and Dengold Holdings continued to purchase fuel from Puma on the basis of their existing trading relationship until late September 2015. There was no evidence that the Guarantee was varied or terminated at any time during that period. In the circumstances, it is reasonable to infer that the Guarantee remained in force for as long as Puma continued to supply fuel to Dengold Holdings and Dengold Holdings continued to purchase fuel from Puma on the basis of their existing trading relationship.
In the circumstances, I am satisfied on the totality of the evidence that Puma has established on the balance of probabilities that Mr Panomarenko has failed or refused to pay Dengold Holdings' outstanding debt of $200,532.79 for the cost of fuel supplied by Puma to Dengold Holdings and for which Mr Panomarenko guaranteed payment and to indemnify Puma against damages arising from Dengold Holdings' default, including legal costs on a solicitor/client basis.
Conclusion
I allow Puma's claim against Dengold Holdings and Mr Panomarenko.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
BA
Associate9 APRIL 2020
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