Sharp v AME Products Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Sharp v AME Products Pty Ltd [2015] QDC 42

PARTIES:

GRAHAM JOHN SHARP
(appellant)

v

AME PRODUCTS PTY LTD
(respondent)

FILE NO/S:

2606/14

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

27 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2015

JUDGE:

Everson DCJ

ORDER:

1.   The appeal is dismissed

2.   The appellant pay the respondent’s costs of and incidental to the appeal on the standard basis

CATCHWORDS:

CONTRACTS – GUARANTEES CONTAINED IN CONTRACTS - APPEAL – whether indemnity limited to $20,000.

Linddales Pty Ltd v Marci Constructions Pty Ltd & Anor [2005] QSC 136, applied.

COUNSEL:

N Ferrett for the appellant

J C Ashcroft for the respondent

SOLICITORS:

SR Wallace & Wallace for the appellant

Carswell & Company for the respondent

Introduction

1. This is an appeal against the decision of a magistrate delivered on 19 June 2014 at Brisbane ordering judgment for the respondent in the sum of $95,327.28 together with interest and costs. 

1. The respondent successfully sued the appellant on a guarantee he gave as the director of a company which was provided with credit by the respondent. 

The relevant facts

1. The relevant facts are contained in the judgment of the magistrate.  They are not contentious.  The appellant was a director of a company, Hunts Automotive Electrical Services Pty Ltd (“the company”).  The company applied to the respondent for credit.  In the application form, it stated “Estimated Monthly Purchases: $10000” and “Credit Required: $20000.00”.  An attachment headed “TERMS AND CONDITIONS OF SALE” set out the terms and conditions upon which the respondent would provide credit to the appellant.  Relevantly, clause 4 was in the following terms:

“4.        CREDIT LIMIT

4.1AME reserves the right to review and vary the credit limit of the applicant at any time.”

“AME” is a reference to the respondent.  This document was dated 4 April 2006 and signed by the appellant in his capacity as director of the company. The application form together with the attached document constitute the contract for the provision of credit by the respondent to the company (“the contract”). 

1. Attached to the contract is a guarantee also dated 4 June 2006 and signed by the appellant as guarantor (“the guarantee”).  The guarantee is in the following terms:

“In consideration of the company at my/our request extending credit to the applicant, I/we Graham Sharp of 112 Neills Rd, Habana, and on behalf of the applicant (together with his or our said and each of their executors, administrators and assigned [sic] called “guarantor”) hereby jointly and severally guarantee to the company the payment by the applicant of all monies which may at any time by [sic] payable by the applicant to the company in relation to goods and services of any kind or nature whatsoever provided to the applicant by the company at the request of the applicant upon demand in writing being made for such monies upon me/us or any or more of us.  This guarantee shall be a continuing…