Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] - [2019] WASCA 145

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WESTGYP PTY LTD -v- NORTHLINE CEILINGS PTY LTD [No 2] [2019] WASCA 145
CORAM:   QUINLAN CJ
MURPHY JA
MITCHELL JA

HEARD:   20 AUGUST 2019
DELIVERED          :   20 SEPTEMBER 2019
FILE NO/S:   CACV 85 of 2018
BETWEEN:   WESTGYP PTY LTD
Appellant
AND
NORTHLINE CEILINGS PTY LTD
First Respondent
GIUSEPPE CRUPI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   VAUGHAN J
Citation: WESTGYP PTY LTD -v- NORTHLINE CEILINGS PTY LTD [2018] WASC 244
File Number             :   CIV 2552 of 2016

Catchwords:

Contract - Offer and acceptance - Credit contract - New contract - Continued supply - Whether judge erred in finding offer was accepted by supplier's conduct

Contract - Interpretation - Deed - Guarantee - Director executed guarantee - Whether judge erred in holding guarantee did not impose continued personal liability on director

Contract - Interpretation - Credit contract - Director executed credit contract - Whether judge erred in holding credit contract did not impose personal liability on director

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S M Davies SC & N van Hattem
First Respondent	:	No Appearance
Second Respondent	:	A P Hershowitz

Solicitors:

Appellant	:	J King Legal
First Respondent	:	No Appearance
Second Respondent	:	Forbes Kirby

Case(s) referred to in decision(s):

Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
AllB Pty Ltd v Beard [2009] NSWSC 1001
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549
ANZ Banking Group Ltd v Comer (1993) 5 BPR 11,748
Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269
Byrnes v Kendle (2011) 243 CLR 253
Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548
City & Suburban Group Pty Ltd v Gambetta Holdings Pty Ltd [2011] WASCA 233
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Farrow Mortgage Services Pty Ltd (in liq) v Collins [1995] ANZ ConvR 431
Fazio v Fazio [2012] WASCA 72
George 218 Pty Ltd [No 2] v Bank of Queensland [2016] WASCA 182; (2016) 313 FLR 287
Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115; (2011) 256 FLR 240
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74
Mercers Co v New Hampshire Insurance Co (18 January 1991, unreported)
Morrell v Cowan (1877) 6 Ch D 166
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
National Bank of New Zealand v West [1978] 2 NZLR 451
National Bank of Nigeria Ltd v Oba M S Awolesi [1964] 1 WLR 1311
National Merchant Buying Society Ltd v Bellamy [2013] EWCA Civ 452; [2013] 2 All ER (Comm) 674
Royal Botanic Gardens and Domain Trust v South Sydney City Council [2005] HCA 5; (2005) 240 CLR 45
Salomon Smith Barney Australia Corporate Finance Pty Ltd v Allgas Energy Ltd [2001] QSC 72
Sasson v Fahevu [1999] NSWCA 400
Scook v Premier Building Solutions Pty Ltd [2003] WASCA 263; (2003) 28 WAR 124
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80
Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236; (2005) 31 WAR 162
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) HCA 52; (2004) 219 CLR 165
Tu v Primary Contracting Services Pty Ltd [2009] NSWCA 7
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244
Westhead v Sproson (1861) 6 H & N 728; (1861) 158 ER 301

QUINLAN CJ:

Introduction

This is an appeal against the decision of Vaughan J in Westgyp Pty Ltd v Northline Ceilings Pty Ltd.[1]
[1] Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244 (Primary decision).
The learned trial judge dismissed claims brought by the appellant (Westgyp) against the second respondent (Mr Crupi), in respect of a debt owed by first respondent (Northline) in relation to the supply of plaster products to Northline on credit. Northline is in liquidation. Westgyp alleged, on various bases, that Mr Crupi was personally liable for the debt, including that he was liable as guarantor under a guarantee and indemnity given by him in 2009 as part of a credit application made on behalf of Northline at the same time (the 2009 Credit Application).

Background and Overview

The background to this appeal, including the relevant findings of the learned trial judge, are set out in the reasons of Murphy JA, whose reasons I have had the benefit of reading in draft.
I agree with Murphy JA, for the reasons that his Honour gives, for concluding that that grounds 1 and 3 should be dismissed. As a consequence of the dismissal of ground 1, the learned trial judge's finding that the terms of the 2012 Credit Application governed the outstanding debt was concerned should be upheld.[2]
[2] Primary decision [255].
I have, however, reached a different view to his Honour in relation to ground 2. My view accords with that of Mitchell JA, whose reasons I have also read in draft. In my view, ground 2 has not been made out, and accordingly, I would dismiss the appeal.
My reasons for reaching that view are as follows.

Ground 2

Ground 2 is solely concerned with the construction of the guarantee and indemnity under the 2009 Credit Application (the 2009 guarantee). The issue of construction is whether, properly construed, the 2009 guarantee is, as the learned trial judge held, confined to the debts incurred by Northline under the 2009 Credit Application or whether, as contended by Westgyp, the 2009 guarantee extended to debts incurred under the 2012 Credit Application.

Principles of construction

The general principles in relation to the construction of commercial contracts are not contentious. In particular, as the plurality in Electricity Generation Corporation t/asVerve Energy v Woodside Energy Ltd[3] 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.
[3] Electricity Generation Corporation t/asVerve Energy v Woodside Energy Ltd (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ). See also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 [47] (French CJ, Nettle & Gordon JJ).
This is, of course, an objective exercise, which 'depends on finding the meaning of the language of the contract'[4] and 'what each party by words and conduct would have led a reasonable person in the position of the other party to believe'[5]. As French CJ, Nettle & Gordon JJ observed in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd:[6]
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.
[4] Byrnes v Kendle (2011) 243 CLR 253 [98] (Heydon & Crennan JJ).
[5] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ). See also Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 [16] (Kiefel, Bell & Gordon JJ).
[6] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 [46] (French CJ, Nettle & Gordon JJ).
Clearly 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.
Moreover, 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'.[7]

The 2009 guarantee

[7] Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [53] (Gummow, Hayne, Heydon, Kiefel & Bell JJ).

The 2009 guarantee relevantly provided:[8]
In consideration of the Company granting credit to me/us, the proprietors/directors described in this application declare and agree as follows:
1.I/we the persons named and described in this Application guarantee to pay the company all monies due and owing and to become due and owing from time to time in respect of credit given inclusive of costs in clause 9 of the Terms and Conditions above and agree to indemnify the Company against any loss of [sic] damages of whatsoever nature incurred by the Company as a result of me/us failing to pay the Company any monies owing in respect of the supply of goods and service on credit and further agree:
…
(ii)That this guarantee and indemnity shall cover all my/our debts to the Company and shall continue in force until the debt is paid in full together with any other amounts due and written notice of termination is received by the Company from me/us from any liability under the guarantee and indemnity in respect of any supply of goods.
[8] Green AB, 29.
As Mitchell JA has observed, the 2009 guarantee is not a model of coherent drafting. In particular, the indiscriminate use of the words 'me/us', 'my/our' and 'I/we' is particularly problematic and requires a flexible approach to construction in order to give the provisions of the 2009 guarantee commercial sense.
I will return to this in more detail in the context of cl 1(ii) of the 2009 guarantee.

The words of guarantee and indemnity

The express words of guarantee and indemnity in the 2009 guarantee are those appearing in the chapeau of cl 1, namely:
'I/we [i.e. Mr Crupi]… guarantee to pay the company all monies due and owing and to become due and owing from time to time in respect of credit given … and agree to indemnify the Company against any loss of [sic] damages of whatsoever nature incurred by the Company as a result of me/us failing to pay the Company any monies owing in respect of the supply of goods and service on credit …'
This is, in my view, the primary provision in the 2009 guarantee and defines the scope of possible application of the obligations guaranteed under the 2009 guarantee as a whole. For the reasons set out in more detail below, I do not consider that cl 1(ii) expands the scope of the guarantee and indemnity beyond the express promises contained in the words of the chapeau.
In interpreting this provision, it is significant that both the guarantee and the indemnity are given in respect of 'credit given' and 'the supply of goods and service on credit', respectively. I leave to one side (for the moment) the express extension of the guarantee to 'costs in clause 9 of the Terms and Conditions'.
At this point in the analysis, it is important to recognise that the expression 'all monies' in the opening words of the chapeau does not have the unqualified effect that it may have in other contexts: the 'all monies' obligation is expressly qualified to that 'in respect of credit given'.[9]
[9] Compare the 'all monies' guarantee considered in National Merchant Buying Society Ltd v Bellamy [2013] EWCA Civ 452; [2013] 2 All ER (Comm) 674 (National Merchant). The guarantee in that case extended to 'all sums' without qualification. Indeed, the appellant's argument in National Merchant was for an implied limitation of a certain monetary amount (see [12] and [40]).
As it is only debts (or damages) in respect of 'credit' that are the subject of the 2009 guarantee, it is necessary to construe what is meant by the 'credit' to which it refers.
It is significant, in that regard, that the guarantee and indemnity is, in the opening words of the 2009 guarantee, given '[i]n consideration of the Company granting credit to me/us' (emphasis added). Those words appear, of course, in the context of the 2009 Credit Application, by which credit is sought by the principal applicant (i.e. Northline). That credit was sought, and later provided, on the basis of the 'Terms and Conditions' appearing on the immediately preceding page of the 2009 Credit Application (the Terms and Conditions). The Terms and Conditions included obligations on the part of Northline extending beyond payment for the supply of goods themselves, including insurance obligations and obligations in relation to costs and expenses.
In my view, given the context of the 2009 Credit Application, a reasonable businessperson would understand the references in the 2009 guarantee to 'credit' (in the opening words of the guarantee and in the chapeau of cl 1) to be references to the credit to be provided in accordance with the 2009 Credit Application. In particular, 'credit' within the meaning of the 2009 guarantee in context, can only be a reference to credit provided in accordance with, and subject to, the Terms and Conditions.
'Credit', on those terms and conditions, is the only credit contemplated by the 2009 Credit Application and the 2009 guarantee. A reasonable businessperson would not understand the reference to 'credit' to be a reference to some other, unidentified, credit arrangement, on potentially different terms and conditions.
In this regard, in my view, the 2009 guarantee falls within the first of the categories identified by Phillips J in Mercers Co v New Hampshire Insurance Co namely:[10]
It is vital to identify the precise nature of the obligation or obligations guaranteed. In many cases the obligations will be those arising under a specific contract between debtor and creditor. This may be evident from the terms of the contract of guarantee itself, where specific reference is made to the contract giving rise to the obligations guaranteed, or from a consideration of the circumstances surrounding the conclusion of the contract of guarantee, where these show that a specific contract was the subject matter of the guarantee.
[10] Mercers Co v New Hampshire Insurance Co (18 January 1991, unreported) cited with apparent approval in National Merchant at [30] (Rimer LJ, Longmore & Kitchin LJJ agreeing).
While the 2009 guarantee was one in relation to future indebtedness, in my view, properly construed, it was nevertheless one relating to obligations arising under a specific contract, namely the 2009 Credit Application.

The reference to cl 9 of the Terms and Conditions

Westgyp submitted that the reference to cl 9 of the Terms and Conditions in the chapeau of cl 1 of the 2009 guarantee provides an indication that the 2009 guarantee is not limited to goods supplied under the 2009 Credit Application.[11] The particular words in the chapeau are: 'inclusive of costs in clause 9 of the Terms and Conditions above'.
[11] Appeal ts 86-88.
Clause 9 of the Terms and Conditions is, as these words suggest, concerned with costs, payable by Northline in accordance with the 2009 Credit Application. Those costs include:[12]
stamp duties and other expenses payable on these terms and conditions or any credit application, guarantee or other security documents signed by me/us, or on my/our behalf, together with any debt collection commission or costs or dishonoured cheque fees.
[12] Green AB, 28.
The reference to 'any credit application', Westgyp submits, must refer to some credit application executed by Northline other than the 2009 Credit Application.[13]
[13] See Murphy JA [157(8)].
Exactly what was intended by 'any' credit application in this context is not clear.[14] Ultimately, I am inclined to think that the reference to 'any' credit application (particularly in the context of the variety of documents to which the words 'any' applies) is an artefact of the indiscriminate way in which the pro forma terms of the 2009 Credit Application and the 2009 guarantee intermingle (and, with respect, confuse) the singular and the plural (i.e. 'I/we', 'my/our', 'business/company/trust').
[14] As to which see Murphy JA [157(8)], [160] and Mitchell JA [189].
In any event, I do not consider that the inclusion of the expression 'any credit application' substantially assists in the construction of the scope of the 2009 guarantee, and in particular, whether it extends to credit beyond that provided under the 2009 Credit Application.
Indeed, to the extent that it is relevant, I agree with Mitchell JA (and the learned trial judge) that the reference to cl 9 of the Terms and Conditions in the chapeau of cl 1 of the 2009 guarantee tends to reinforce that the guarantee is given in respect of credit provided under, and only under, those terms and conditions.
In that regard, the reference to cl 9 of the Terms and Conditions in the chapeau unambiguously ties the scope of the guarantee to the terms and conditions of the 2009 Credit Application. That is, a reasonable businessperson, reading the chapeau of cl 1 as whole, including the reference to cl 9 of the Terms of Conditions, would be led to understand that the breadth of the 'credit' to which the guarantee applies is that pursuant to the Terms and Conditions, of which cl 9 forms one part.
Moreover, even if (as I accept is a reasonable construction) the expression 'any credit application' refers to some credit application executed by Northline other than the 2009 Credit Application, it remains the case that that expression is only used in the context of Northline's obligation to pay costs. It does not extend the nature of the credit (or accommodation) provided by the 2009 Credit Application. It remains the case that the only agreement as to the terms upon which credit might be provided to Northline contemplated by the 2009 guarantee is that given pursuant to the Terms and Conditions.
For these reasons, I do not consider that the reference to cl 9 of the Terms and Conditions in the 2009 guarantee extends that guarantee to monies owing in respect of credit provided otherwise than under the 2009 Credit Application.
It remains then to consider whether clause 1(ii) of the 2009 guarantee brings about such a result.

Clause 1(ii) of the 2009 guarantee

Westgyp submits that, regardless of the constraints that might arise from the language of the chapeau of cl 1 of the 2009 guarantee, cl 1(ii), which is preceded by the words 'and further agrees', extends the scope of the 2009 guarantee so as to render it, truly, an 'all monies' guarantee.
In particular, Westgyp submits that, on its proper construction, cl 1(ii) covers all amounts due in respect of any supply of goods. It submits that the clause would be superfluous in the context of the whole of the document if it was confined to the debts incurred in accordance with the 2009 Credit Application.[15]
[15] Appellant's Submissions [38].
I disagree.
While I accept that cl 1(ii) is intended to make further provision in relation to the 2009 guarantee, in my view, it does not operate independently of the express terms of the guarantee provided by the chapeau of cl 1. The terms of the chapeau are, and would be understood by the reasonable businessperson, to be the primary provision.
It is that provision in which the promissory verbs 'guarantee' and 'indemnify' are used. By contrast, cl 1(ii) itself commences with reference to the composite noun 'this guarantee and indemnity' which, in context, is apt to refer to the guarantee and indemnity given by the opening words of cl 1. In my view, cl 1 (ii) is intending to predicate something about the guarantee and indemnity (given in the preceding provisions) rather than to fundamentally alter its scope.

In that context, cl 1(ii) provides a particular instance of the indiscriminate and problematic use of the words 'me/us' and 'my/our'. Clause 1(ii), for example, uses the expressions 'my/our' and 'me/us' within the same sentence, but apparently, with reference to different parties. The reference to 'me/us' in the latter part of the clause can only be a reference to the guarantor (in this case, Mr Crupi). As a matter of consistency, one would ordinarily expect that the cognate expression 'my/our' (as in 'all my/our debts to the Company') to be a reference to the same person or persons.
In the context of the 2009 guarantee as a whole, Murphy JA has concluded that the words 'my/our' must be taken to refer to Northline's debts. As his Honour remarks, those words 'would not ordinarily be read on the tautological basis that the guarantor promises that 'this guarantee … covers all [the guarantor's guaranteed] debts''.[16] There is much force in that view.
[16] Murphy JA [157(9)].
Even still, I am not so sure. On one construction, it might be that cl 1(ii), with its reference to the 2009 guarantee covering 'all my/our debts' until the debt is paid and written notice of termination is received from 'me/us', is only a reference to the guarantor's debts under the 2009 guarantee and that the contractual purpose of cl 1(ii) is confined to identifying the circumstances in which the guarantor might withdraw from the guarantee.
On this construction, while cl 1(ii) does not expand the breadth of the indemnity granted by the chapeau in cl 1, it nevertheless serves a contractual purpose in prescribing the mechanism for the guarantor to withdraw from the guarantee (i.e. payment of guaranteed debts already incurred plus written notice of termination). By this construction, there would be no redundancy or superfluity.
In any event, I agree with Mitchell JA's reasons, that, insofar as cl 1(ii) is intended to refer to Northline's debts, that cl 1(ii) is to be read together with the chapeau of cl 1 and subject to the words of limitation in that chapeau. I agree that a reasonable businessperson reading the 2009 Credit Application as a whole, would not understand the words of limitation in the chapeau of the guarantee and indemnity to be superfluous.
Indeed, as I have said, I would go further. In my view the guarantee and indemnity given by the chapeau of cl 1 is the primary provision and the terms of cl 1(ii) are subordinate to it. That is, whatever work cl 1(ii) has to do in the context of the 2009 guarantee as a whole, it does not expand the scope of the guarantee and indemnity beyond the debts (and damages) the subject of the express promises contained in the chapeau.
Accordingly, even reading the words 'my/our' in cl 1(ii) as a reference to Northline's debts as guaranteed in the words of the chapeau, cl 1(ii) would continue to serve the contractual purpose of identifying the circumstances in which the guarantor might withdraw from the guarantee.
In this regard, the contractual purpose of the provision is akin to one of the additional provisions in the 'all monies' guarantee considered by the Court of Appeal in National Merchant:[17]
This guarantee shall be a continuing guarantee, subject to the right of any or either of us to give notice of revocation thereof … but no revocation shall in any way diminish or affect our liability to you in respect of any indebtedness of [the primary debtor] incurred under any contract or obligation entered into between you and [the primary debtor] prior to your receipt of such notice.
[17] National Merchant [12].
In my view, while clearly in different terms (and not as happily drafted), cl 1(ii) serves the same contractual purpose as the above provision in the guarantee considered in National Merchant.

Conclusion

For the foregoing reasons, in my view the learned trial judge was correct to conclude that, on its proper construction, the 2009 guarantee only covered debts relating to goods supplied under the terms of the 2009 Credit Application.
Ground 2 is not established.
I would dismiss the appeal.

MURPHY JA:

Introduction

By this appeal, the appellant (Westgyp) appeals against the decision of Vaughan J in Westgyp Pty Ltd v Northline Ceilings Pty Ltd[18] (primary decision).
[18] Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244.
The first respondent (Northline) is in liquidation and is not taking part in the appeal. The second respondent (Mr Crupi), who was at all times the sole director of Northline,[19] is taking part in the appeal.
[19] Primary decision [97].
In substance, the primary proceedings relevantly concerned claims by Westgyp in debt in relation to the supply of plaster products to Northline on credit in the sum of approximately $860,000. Westgyp contended, in effect, that Northline's debt to Westgyp was guaranteed by Mr Crupi, or that Mr Crupi was otherwise personally liable for the debt. As Northline is in liquidation, any effective recovery of the sum claimed depended upon establishing personal liability on the part of Mr Crupi. The judge found that Mr Crupi was not personally liable for the debt. Westgyp appeals against that decision.

Background[20]

2003 - 2007

[20] The following background is a narrative of the findings of fact made by the primary judge. Insofar as there are questions of admissibility raised in the appeal, they are addressed in the course of the disposition section of these reasons.

Since about 2003 or 2004, Mr Crupi and Mr Hudston (who later became Westgyp's sole director)[21] have had business dealings together and had a personal relationship or friendship that extended beyond their business dealings.[22]
[21] Primary decision [96].
[22] Primary decision [106] - [108].
In about 2006, Westgyp was incorporated and took over an earlier plaster supply business commenced in about 2001 which Mr Hudston operated as a sole proprietor.[23] Since about 2006, Westgyp supplied ceiling and plaster products to the construction industry in Western Australia.[24] At all material times, Westgyp had a credit approval system in place.[25]
[23] Primary decision [96] - [97].
[24] Primary decision [96].
[25] Primary decision [99].
On 4 July 2006, Northline was incorporated.[26] Northline provided ceiling fixing services for both commercial and residential projects.[27]
[26] Chronology; WB 38.
[27] Primary decision [97].
From 2007, Westgyp supplied plastering products at the request and benefit of Northline on a running account.[28] Orders were usually made over the phone but they were also made in writing and in person. The products as ordered were either collected on behalf of Northline or delivered by Westgyp to building sites. All orders were entered on Westgyp's computer system. Invoices addressed to Northline were generated from that information.[29] Mr Crupi acknowledged that there was always a credit arrangement in place.[30]

2007 Credit Application

[28] Primary decision [6], [109].

[29] Primary decision [109].

[30] Primary decision [112].

On 24 January 2007, Mr Crupi executed, as a director of Northline, a pro forma document provided by Westgyp headed 'Application for Credit Account'. He also executed the accompanying guarantee and indemnity component of the document.[31] The document as executed (in both its parts) will be referred to as the '2007 Credit Application'. In its unexecuted form as sent by Westgyp, it will be referred to as the 'pro forma 2007 Credit Application'.
[31] Primary decision [7], [113] - [114], [118]; chronology; WB 38; GB 22 - 25A.
The pro forma 2007 Credit Application was a relatively unsophisticated document by which Northline applied for credit in the form of 30 day trading terms. Applicants were asked to complete the document in full.[32]
[32] Primary decision [114].
The pro forma document was essentially in three parts: first, a section for completion of information by the applicant including the estimated credit limit sought by the applicant, the applicant's trading details and history of 'insolvency', the details of its directors and the applicant's 'trade references'.[33] The second section was headed the 'Terms and Conditions' which were to be observed by the applicant for credit.[34] Thirdly, there was a section headed 'Guarantee and Indemnity'. Amongst other things, the guarantee and indemnity provided (by cl 1(iv)) that the guarantor secured his or her liability under the credit application by charging all real property held or acquired while the guarantee and indemnity remained in force with payment under the guarantee and indemnity.[35]
[33] GB 22 - 24.
[34] GB 24 - 25.
[35] Primary decision [114] - [115]; GB 25 - 25A.
The pro forma 2007 Credit Application did not, in the 'Terms and Conditions' section or elsewhere, contain a provision obliging Westgyp to supply any goods to Northline.
The pro forma 2007 Credit Application form did not provide any space for Westgyp to accept or approve the application.
Northline omitted to complete, amongst other things, the estimated credit limit, the company's date of incorporation and various trading details along with Mr Crupi's driver's licence number and Northline's insolvency history.[36] The guarantee and indemnity part of the document was executed as a deed by Mr Crupi in his personal capacity.[37]
[36] Primary decision [114].
[37] GB 25A.
There was no notation of Westgyp's acceptance or approval on the executed 2007 Credit Application.[38] Northline and Mr Crupi did not receive any notification from Westgyp that it had received or approved the executed 2007 Credit Application.[39]
[38] Primary decision [116].
[39] Primary decision [120].
It was common ground that the 2007 Credit Application was superseded by another document referred to below as the 2009 Credit Application.[40]

2009 Credit Application

[40] Primary decision [121]; GB 28.

On 9 December 2009, Mr Crupi executed another pro forma document provided by Westgyp entitled 'Application for Credit Account', and the accompanying guarantee and indemnity component within that document (together the '2009 Credit Application').[41]
[41] Primary decision [125]; chronology; WB 38; GB 26 - 29.
The pro forma 2009 Credit Application:
1.Was a four‑page document in three parts. The cover page recorded that the instrument was an 'application for credit account'. It required that the applicant 'please complete in full'. A space was provided for the applicant's name. Otherwise the cover page recorded that the credit account was for trading terms of 30 days net.[42]
2.Like the pro forma 2007 Credit Application, it then provided for the various details that the applicant was to insert, as well as Westgyp's trading terms and conditions and a pro forma guarantee and indemnity.[43]
3.Like the pro forma 2007 Credit Application, it:
(a)did not contain any provisions obliging Westgyp to supply goods to Northline; and
(b)did not provide any space for Westgyp to accept or approve the application.
[42] Primary decision [122]; GB 26.
[43] Primary decision [123]; GB 27 - 29.
The trading details of the 2009 pro forma Credit Application were completed by Mr Crupi. In terms of 'the applicant', he inserted his own name. Then, however, he described the trading name of the applicant as 'Northline Ceilings Pty Ltd' and wrote 'Northline Ceilings Pty Ltd' as the applicant on the cover page of the 2009 Credit Application. A box was ticked indicating that the applicant was a 'sole trader' as distinct from a 'private co', although Northline was a private company. As to the space for names and addresses of directors, Mr Crupi completed his name, address, date of birth and telephone number. The estimated credit limit required was completed in the amount of $150,000.[44]
[44] Primary decision [124]; GB 26 - 27.
Mr Crupi signed the terms and conditions as director for and on behalf of 'Northline'.[45] Mr Crupi also signed the guarantee and indemnity part of the document. His signature was witnessed by Mr Hutton.[46]
[45] Primary decision [125]; GB 28.
[46] Primary decision [126]; GB 29.
It was common ground that Westgyp received the application after execution.[47]
[47] Primary decision [129].
As noted earlier, there was no notation for acceptance or approval on the document. Westgyp never informed Northline that the 2009 Credit Application had been approved.[48]
[48] Primary decision [130].
After the execution and provision of the 2009 Credit Application by Northline to Westgyp, Westgyp continued to supply plaster products to Northline as it had before.[49]
[49] Primary decision [131].
The guarantee and indemnity was executed as a deed. It also contained a provision for Mr Crupi to give written notice to terminate its operation. Mr Crupi never gave Westgyp written notice of termination under cl 1(ii) of the guarantee and indemnity.[50]
[50] Primary decision [261].
The guarantee and indemnity within the 2009 Credit Application relevantly provided:[51]
[51] Primary decision [127]; GB 29.
In consideration of [Westgyp] granting credit to me/us, the proprietors/directors [Mr Crupi] described in this application declare and agree as follows:
1.I/we the persons named and described in this Application [namely Mr Crupi] guarantee … to pay [Westgyp] all monies due and owing and to become due and owing from time to time in respect of credit given inclusive of costs in clause 9 of the Terms and Conditions above and agree to indemnify [Westgyp] against any loss of [sic] damages of whatsoever nature incurred by [Westgyp] as a result of me/us failing to pay [Westgyp] any monies owing in respect of the supply of goods and service on credit and further agree:
…
(ii)That this guarantee and indemnity shall cover all my/our debts to [Westgyp] and shall continue in force until the debt is paid in full together with any other amounts due and written notice of termination is received by [Westgyp] from me/us from any liability under the guarantee and indemnity in respect of any supply of goods.
…
(vi)In order to secure my/our liability under this guarantee and indemnity I/we charge all our real property and [sic] the date of this deed and all real property acquired by me/us including but not limited to, that real property particularised in the Appendix to this guarantee, whilst this guarantee and indemnity remains in force with payment of any amount falling due under the guarantee and indemnity and I/we agree to execute any documents required by [Westgyp] to do all such things may be required by [Westgyp] to effect such security upon demand at any time.
…
(x)This guarantee and indemnity shall take effect as a Deed. (emphasis added)

Westgyp's sales 2010 - 2011

The annual sales made by Westgyp to Northline for the financial year to 30 June 2010 was $313,161.08.[52]
[52] Primary decision [111].
The annual sales made by Westgyp to Northline for the financial year to 30 June 2011 was $491,633.28.[53]

Westgyp's processes for assessing credit in 2012

[53] Primary decision [111].

In 2012, Westgyp's process for approval of credit applications was that, upon receipt of a completed credit application, a copy of the application was sent to CMSA, a credit receivable manager. CMSA performed a credit check on the applicant and any guarantor, and would make a recommendation to Westgyp as to whether the applicant should be approved for the supply of product on credit. Mr Hudston had the final decision on whether to supply a customer.[54]
[54] Primary decision [100] - [101].
In 2012, Westgyp, through Mr Hudston, had a policy to (1) require a guarantee, and (2) reject credit applications in which guarantees had not been executed unless other acceptable arrangements had been made to ensure payment.[55]

Westgyp's letter to Northline dated 16 March 2012

[55] Primary decision [103].

On 16 March 2012, Ms Gosnell of the accounts department of Westgyp wrote to Mr Crupi of Northline about updated trading terms and conditions and a guarantee and indemnity. A similar letter was set to all Westgyp customers.[56] The letter relevantly provided:[57]
As part of our expansion we need to review and update our trading terms and agreements. I am enclosing our new Westgyp Plasterboard Trade Centres Credit Application Form which I will require to be completed in FULL. It is very important that the document is completed and is independently witnessed. This process on your part will be greatly appreciated and to avoid any disruptions of supply to your present credit facilities it needs to be done as soon as possible. It is also a good time to review and update your current Credit Limit.
Following on from receiving the new Credit Application, you will be contacted by a Westgyp Staff member to confirm that you are in receipt of the Credit Application form and that it is completed in full, independently witnessed and ready for collection.
We appreciate your good custom and we apologise for any inconvenience that this necessary measure for our Credit management may cause you. Should you or your Accounts Payable require our assistance in completing the Credit Application form then please contact either myself [a Ms Gosnell - of the Westgyp Accounts Department] or John Hutton … and we will only be too willing to assist. (emphasis added)

2012 Credit Application

[56] Primary decision [135]; chronology; WB 38.

[57] Primary decision [134].

At trial there was a dispute as to whether another pro forma document entitled 'Application for Credit 30 Day Account' was signed on 30 March 2012 by Northline and received by Westgyp shortly thereafter (the '2012 Credit Application').[58]
[58] Primary decision [133].
The judge found that the 2012 Credit Application was signed by Mr Crupi and given to John Hutton on behalf of Westgyp.[59] John Hutton delivered the signed copy to Westgyp at Westgyp's offices.[60]
[59] Chronology; WB 38.
[60] Primary decision [231].
As to the occasion on which the 2012 Credit Application was signed, the judge found:[61]
There was a discussion between Mr Hutton and Mr Crupi about the non‑execution of the Confidential Personal Guarantee and Indemnity Agreement. Mr Hutton suggested that whether Mr Crupi provided the guarantee was up to him, as the client, having taken advice from his accountant. Mr Hutton pointed out that it was not what Westgyp wanted. Mr Hutton recalled saying that he did not think that Mr Hudston, or Mr Hudston's wife, would be particular happy about it, in response to which Mr Crupi referred to some invoicing issues and said 'stuff them'.[62]
[61] Primary decision [193].
[62] ts 220.
The pro forma 2012 Credit Application commenced with a cover page. It was then in two parts. The first part was headed 'Confidential Credit Application Form'. It contained six sections of financial and other information for completion by the applicant and a further section headed Credit Terms. The second part of the pro‑forma 2012 Credit Application was a two‑page part headed 'Confidential Personal Guarantee and Indemnity Agreement'.[63]
[63] Primary decision [137]; GB 31 - 37.
A box on the cover page provided instructions for completing and submitting the document:[64]
[64] Primary decision [138]; GB 31.

Completing and Submitting this Document

For your application to be processed, ensure that you have completed and signed both parts of this document: the Confidential Credit Application Form and the Personal Guarantee and Indemnity Agreement.

Return this document (completed, signed and witnessed) to

Westgyp Pty Limited …

At the commencement of the 'Confidential Credit Application Form' and the 'Personal Guarantee and Indemnity Agreement' there were boxes as follows:[65]
[65] Primary decision [139]; GB 32, 36.

Completing and Submitting this Document

Thank you for applying for credit facilities with Westgyp Pty Limited (ACN 121 180 630), 7 Corbusier Place, Balcatta, Perth WA 6021.

For your application to be processed, it is necessary to complete and sign both parts of this document: the Confidential Credit Application Form and the Personal Guarantee and Indemnity Agreement.

Return this document (completed, signed and witnessed) to Westgyp Pty Limited (ACN 121 180 630).

Important Note

As part of your application for credit, this Personal Guarantee and Indemnity Agreement must be completed and signed by all Directors, Sole Traders and Business Partners in the presence of Independent Witnesses (not Spouses or Family Members).

Spouses of all Directors, Sole Traders and Business Partners are requested to also sign as Guarantors in the presence of Independent Witnesses.

The first two pages of the 'Confidential Credit Application Form' comprised six sections within which information was to be inserted. Section 1 dealt with applicant details. In completing this part, Mr Crupi recorded that the business operated as a 'Pty Ltd/Ltd Company'. The name of the 'Business/Company' was given as 'Northline'. Section 2 was headed 'Companies, Sole Trader and Business Partnerships'. There it was necessary to enter details for 'all Directors, Sole Traders and Business Partners'. Mr Crupi entered his details, setting out his name, date of birth and residential address. Mr Crupi noted that his residence was owned rather than rented. Section 3, seeking details as to spouses, was struck through. Sections 4, 5 and 6, dealing with trade references, history of solvency and financial details respectively, were completed.[66] Mr Crupi answered 'yes' to the question of whether any 'financial institution, company or person [held any] personal guarantees or other security from you personally', and gave details.[67]
[66] Primary decision [141]; GB 32 - 33.
[67] GB 33.
The section headed 'Credit Account Terms and Conditions' (Credit Terms) extended over two pages. Within those terms reference to the 'Customer' or 'Buyer' meant the party making the application for credit (ie Northline). The terms and conditions were said to apply to credit extended by Westgyp and any of its related bodies corporate.[68]
[68] Primary decision [142]; GB 36 - 37.
By cl 1(a) of the Credit Terms, the trading terms were 30 days unless otherwise stated.
Clause 2(a) of the Credit Terms provided for the payment of interest at 1.5% per month on overdue accounts. The requirement to pay interest at 1.5% per month on overdue accounts, was a provision not included in the 2007 and 2009 Credit Applications.
Clause 2 also provided for the following as to overdue accounts:[69]
(c)The Customer grants to [Westgyp] an express legal and equitable charge over the customer's freehold or leasehold property for the amount due on overdue accounts. The Customer agrees to deliver to [Westgyp], within seven (7) days of demand, a properly executed Memorandum of Mortgage in a form approved by [Westgyp] and which includes a covenant providing that interest may be charged on all outstanding monies at the rate of 1.5% per month calculated on a daily basis on any monies due but unpaid. Such interest will be calculated from the due date of payment.
(d)The Company and/or individual person(s) referred to in Section (1) and/or (2) of this application hereby Charge all their Right, Title, Interest (if any) in the property or properties referred to in Section (1) and (2) of this application and also any property or properties that they own currently or may acquire in the future solely or jointly or have or become to have a beneficial interest in, in favour of Westgyp, with the due and punctual observance and performance of all of the obligations of the Customer/Buyer. Such person(s) acknowledge that Westgyp may at its discretion register and lodge a Caveat(s) on such property or properties in respect of the Interests conferred on it under this, clause. Such registration of a Caveat by Westgyp over the Customer(s) property or properties shall not be challenged by the Customer/Buyer in any way whatsoever, and the Buyer agrees not to take any steps in filing a 'Lapsing Notice' via Landgate to have the Caveat removed, until such time the Buyer has paid all monies owing by it to Westgyp as claimed from time to time.
[69] Primary decision [142]; GB 34.
At the end of the clauses within the Credit Terms part of the document, space was next provided for 'applicant signature/s'. The following appeared prior to that space:[70]
Application is hereby made for a credit account. I agree to be bound by the above terms, and consent to the terms under the Privacy Act 1988, as detailed in Clause 5 of the terms and conditions above. I acknowledge that [Westgyp] might in future acquire additional subsidiaries, which may supply Goods to me on credit, and that the above terms will apply to the purchase of those Goods.
[70] Primary decision [143]; GB 35.
The Confidential Credit Application Form then directed that 'all directors, sole traders and business partners sign below'. The signature was to occur in front of an 'Independent Witness' (not a spouse or family member). Mr Crupi signed at the space indicated for signature by 'all directors, sole traders and business partners'.[71]
[71] Primary decision [144]; GB 35.
There was no express provision in the form for a person to sign on behalf of another person or entity. Mr Crupi signed his name without specifying that he signed for and on behalf of Northline.[72] As with the 2007 and 2009 pro forma Credit Applications, the 2012 Credit Application:
1.Did not oblige Westgyp to supply any goods to Northline.
2.Did not provide any space for Westgyp to accept or approve the application.[73]
[72] Primary decision [147].
[73] Primary decision [152].
The executed 2012 Credit Application was witnessed by Mr Hutton and dated 30 March 2012.[74] There was no notation of acceptance or approval on Westgyp's part.[75]
[74] Primary decision [144].
[75] Primary decision [152].
Mr Crupi did not complete or sign the final part of the pro forma 2012 Credit Application, which consisted of two pages headed 'Personal Guarantee and Indemnity Agreement'.[76] Instead, that part of the pro forma document was struck through by Mr Crupi.
[76] Primary decision [148].
The pro forma guarantee and indemnity in the 2012 Credit Application provided that if Westgyp elected to provide the Customer with goods on credit then:[77]
1.I [the guarantor] will indemnify [Westgyp] against any losses, costs, charges and expenses of any nature, which it might incur as a result of any default by the Customer or arising under this Guarantee …
2.I will also be responsible to [Westgyp] for all outstanding monies due now or at any time in the future for Goods supplied by [Westgyp] to the Customer from time to time.
…
The Guarantor hereby agrees to charge all the equitable interest in freehold or leasehold property. The Guarantor agrees to deliver to [Westgyp], within seven (7) days of demand, a properly executed Memorandum of Mortgage in a form approved by [Westgyp] and which includes a covenant providing that interest may be charged on all outstanding monies at the rate of 1.5% per month calculated on a daily basis on any monies due but unpaid. Such interest will be calculated from the due date of payment.
9.The Company and/or individual person(s) referred to in Section (1) and/or (2) of this application hereby Charge all their Right, Title, Interest (if any) in the property or properties referred to in Section (1) and (2) of this application and also any property or properties that they own currently or may acquire in the future solely or jointly or have or become [sic] to have a beneficial interest in, in favour of Westgyp, with the due and punctual observance and performance of all of the obligations of the Customer/Buyer. Such person(s) acknowledge that Westgyp, may at its discretion register and lodge a Caveat(s) on such property or properties in respect of the interest conferred on it under this clause. Such registration of a Caveat by Westgyp over the Customer(s) property or properties shall not be challenged by the Customer/Buyer in any way whatsoever, and the Customer/Buyer agrees not to take any steps in filing a 'Lapsing Notice' via Landgate to have the Caveat removed, until such time the Customer/Buyer has paid all monies owing by it to Westgyp as claimed from time to time.
If the charge created by this clause is or becomes void or unenforceable, it may be severed from this agreement without any effect on it's (sic) validity; and the Guarantor will not exonerated in whole or part. Nor will [Westgyp]'s rights, remedies or recourse against the Guarantor or any other Guarantor in any way be prejudiced or adversely affected by such a severance.
[77] Primary decision [151]; GB 36.
As noted earlier, the entirety of the two pages comprising the 'Personal Guarantee and Indemnity Agreement' part of the pro forma 2012 Credit Application was struck through.[78] The 2012 Credit Application (with the pro forma guarantee struck through) was executed in the circumstances referred to in [82] ‑ [83] above.
[78] Primary decision [137], [148].
Sometime after April 2012, Mr Hutton discussed the 2012 Credit Application with Mr Hudston. Accordingly, Westgyp knew that it had been executed by Northline, and it knew of the way that it had been completed.[79]

Supply by Westgyp after 30 March 2012

[79] Primary decision [231].

Westgyp continued to supply goods to Northline between 2012 and July 2016.[80] Supply continued uninterrupted after provision of the 2012 Credit Application. Westgyp never reverted to Northline to inform it that the non‑execution of the guarantee was unacceptable to it.[81]
[80] Primary decision [154].
[81] Primary decision [248].
The annual sales made by Westgyp to Northline for the financial year to 30 June 2012 were $700,383.75.[82] The annual sales made by Westgyp to Northline for the financial years 30 June 2013 to 30 June 2015 ranged from $329,302.15 to $626,785.32.[83]
[82] Primary decision [111].
[83] Primary decision [111].
Westgyp's letter to Northline dated 5 October 2015, requesting payment on an overdue account, included a reference to charging interest at 1.5% per month.[84]

Cessation of supply and caveats by Westgyp

[84] ts 63 - 64.

Westgyp first stopped supplying product to Northline around the end of June or early July 2016.[85] As at trial, the debt due for the goods was in the amount of $858,776.71, which related to a period of trading after 11 September 2015.[86]
[85] Primary decision [110].
[86] Primary decision [154], [257].
In about June 2016 Mr Hudston became aware that an application had been made to wind up Northline. In July 2016, Westgyp lodged caveats against all properties in which Mr Crupi held an interest. By each caveat Westgyp claimed an interest in Mr Crupi's estate in the land as charged pursuant to the 2009 Credit Application.[87]

Westgyp's demands for payment in 2016

[87] Primary decision [168] - [170].

On 29 June 2016, Westgyp, through CMSA, made a demand for payment from Northline and Mr Crupi for the amount then outstanding to Westgyp (said to be $856,004.36) together with claims for court interest ($23,744.11), collection charges ($87,974.85) and the cost of the caveats ($4,950).[88]
[88] Primary decision [172]; chronology; WB 38.
Correspondence ensued between Ms Avni and Mr Crupi, which included 'apparent admissions'; that is, Mr Crupi accepted that he personally had a liability to Northline (eg, in emails dated 6 July 2016[89] and 5 August 2016).[90]
[89] Primary decision [173] citing exhibit 1.39.
[90] Primary decision [173] citing exhibit 1.43.
On 7 September 2016, Westgyp commenced the primary proceedings.[91]
[91] Primary decision [178].
On 25 October 2016, Northline was wound up by an order of the Federal Court.[92]
[92] Primary decision [179].

Westgyp's claim

Westgyp commenced the primary proceedings to recover $858,776.71 together with debt collection costs, interest and costs in respect of goods supplied after 11 September 2015.[93] Westgyp's primary claim was based on the 2009 Credit Application. Westgyp's alternative claim was based on the 2012 Credit Application. By virtue of charging clauses under both the 2009 and 2012 Credit Applications, Westgyp sought a declaration that it was entitled to an equitable charge over Mr Crupi's interests in certain properties together with consequential orders for judicial sale or the appointment of a receiver.[94]
[93] Primary decision [19], [154], [257].
[94] Primary decision [2], [19].

Primary decision - the issues

Relevantly for present purposes, Vaughan J summarised the issues for determination in terms to the following effect:[95]
[95] Primary decision [27].
1.Did Westgyp and Northline enter into an agreement in terms of the 2012 Credit Application such that, after about 30 March 2012, the terms of that agreement governed the supply of goods by Westgyp to Northline? (Issue 1)
2.If yes to Issue 1:
(a)Does the guarantee and indemnity under the 2009 Credit Application nevertheless continue to apply to the post‑30 March 2012 supply of goods by Westgyp to Northline in any event? (Issue 2(a))
(b)Alternatively, does the agreement in terms of the 2012 Credit Application itself impose any personal liability on Mr Crupi to pay to Westgyp amounts owing by Northline? (Issue 2(b))
3.If no to Issue 1, does the guarantee and indemnity under the 2009 Credit Application continue to apply to the post-30 March 2012 supply of goods by Westgyp to Northline? (Issue 3)
4.Is Westgyp entitled to maintain the caveats it has lodged in relation to the properties in which Mr Crupi holds an interest? (Issue 5(b))

Primary decision - determination of issues

The primary judge's findings were as follows.

Issue 1

Yes. Westgyp and Northline entered into an agreement in terms of the 2012 Credit Application. The terms of the 2012 Credit Application governed the supply of goods by Westgyp to Northline so far as the outstanding debt was concerned.[96]

Issue 2(a)

[96] Primary decision [255].

No. On its proper construction, Mr Crupi's guarantee and indemnity under the 2009 Credit Application only covers debts, including costs, as to goods supplied under the terms of the 2009 Credit Application. It does not extend to debts arising pursuant to the supply of goods under the 2012 Credit Application, such as those claimed in the primary proceedings.[97]

Issue 2(b)

[97] Primary decision [268].

No. Mr Crupi signed the 2012 Credit Application solely as a director of Northline and not in a personal capacity. In the absence of an objective common intent that Mr Crupi was to be personally bound, he is not a party to the 2012 Credit Application.[98]

Issue 3

[98] Primary decision [297] - [298].

Issue 3 did not arise.[99]

Issue 5(b)

[99] Primary decision [299].

Westgyp was not entitled to the equitable charge it claimed over Mr Crupi's interest in the properties, as issues 1, 2(a) and 2(b) were determined against Westgyp, such that the 2009 Credit Application did not apply to the outstanding debt and the 2012 Credit Application charging clause did not bind Mr Crupi personally.[100]
[100] Primary decision [333].

Grounds of appeal

Westgyp raised three grounds of appeal, to the effect that the judge erred:[101]
1.In finding that the 2012 Credit Application was accepted by Westgyp's conduct (an error of mixed fact and law, at [242] ‑ [255]).
2.In holding that the executed guarantee in the 2009 Credit Agreement did not continue to impose personal liability upon Mr Crupi (an error of law at [260] - [268]).
3.In holding that the terms of the 2012 Credit Application did not impose personal liability on Mr Crupi (an error of law at [269] ‑ [298]).
[101] See amended appellant's case filed 3 October 2018.

Westgyp's submissions

Ground 1

Westgyp submitted that following the deletion of the pro forma guarantee and indemnity, the 2012 Credit Application 'could not be accepted by [Westgyp]'[102] because:
1.The actual wording of the instructions on the 2012 Credit Application which appeared three times at pages 1, 2 and 6 of the agreement, required that both the Confidential Credit Application form and the Personal Guarantee and Indemnity Agreement be completed and signed.[103]
2.The 'literal meaning of the clear words of the … application' are such that '[b]y its terms, [the application] said that it would not be processed (ie accepted) by [Westgyp]'.[104]
3.The instructions on the 2012 Credit Application required completion and signing of (1) the credit application, and (2) the guarantee and indemnity, for the application to be processed. The ordinary meaning of the instructions 'made it clear that completing and signing the credit application alone was insufficient and incapable of acceptance'.[105]
4.Westgyp's sole director, Mr Hudston, gave evidence that the 2012 Credit Application 'was not in a form capable of being accepted' by Westgyp,[106] and, similarly, Mr Crupi gave evidence that he knew this at the time the credit application was executed.[107]
[102] Appellant's written submissions, par 15; WB 6.
[103] Appellant's written submissions, pars 22, 25 - 28; WB 7 - 8 (emphasis in original submissions).
[104] Appellant's written submissions, par 15; WB 6 - 7 citing primary decision [240].
[105] Appellant's written submissions, par 16 - 17; WB 7 citing primary decision [138] ‑ [139].
[106] Appellant's written submissions, par 18; WB 7 citing witness statement of Matthew Stephen Hudston dated 22 December 2017, par 9; GB 6 - 7.
[107] Appellant's written submissions, par 19; WB 7 citing ts 189 - 190.
Westgyp submitted, in essence, that the judge took the wrong approach in interpreting the 2012 Credit Application, by applying the reasonable bystander test, and in failing to commence with a consideration of the actual wording of the instructions on the 2012 Credit Application.[108]
[108] Appellant's written submissions, pars 21 - 22; WB 7.
Westgyp also submitted that the judge failed, in effect, to consider:
1.The 2007 and 2009 Credit Applications which Westgyp had accepted had both (1) the credit application, and (2) the guarantee and indemnity completed and signed.[109]
2.Westgyp's letter dated 16 March 2012 to the 2012 Credit Application and guarantee and indemnity made it clear that the document had to be fully completed, whereas no such definitive instructions accompanied the previous credit applications'.[110]
3.Mr Crupi's concession in cross-examination that the document was incapable of being accepted because the guarantee and indemnity were not completed and signed.[111]
4.That the 'detriment to [Westgyp] in accepting the document as replacing the existing credit application and guarantee and indemnity … far outweighed any benefit'.[112]
5.That Mr Crupi made 'apparent admissions' and 'subsequently acted as if he still held personal liability to [Westgyp]'.[113]
[109] Appellant's written submissions, par 30(a); WB 8.
[110] Appellant's written submissions, pars 29, 30(b); WB 8 - 9.
[111] Appellant's written submissions, par 30(c); WB 9 citing ts 189 - 190.
[112] Appellant's written submissions, par 30(d); WB 9.
[113] Appellant's written submissions, par 31; WB 9 citing primary decision [173]; witness statement of Matthew Stephen Hudston dated 22 December 2015, pars 24 - 25; GB 11; witness statement of Louise Avni dated 24 January 2018, pars 3 - 6; GB 17 - 18; witness statement of Louise Avni dated 28 May 2018, par 3; GB 20; witness statement of Tony Trajcevski dated 31 January 2018, par 5; GB 13 - 14.
Westgyp also submitted that the judge erred in finding that Westgyp was required to notify Mr Crupi that the 2012 Credit Application was rejected.[114]
[114] Appellant's written submissions, par 32; WB 9.
Westgyp submitted that 'rather than base his … analysis on the wording of the instructions on the documents, the … judge held that Westgyp's submission was "defeated" by a different wording of the instructions which bore a closer resemblance to the 16 March 2012 letter'.[115]

Ground 2

[115] Appellant's written submissions, par 33; WB 9 citing primary decision [246].

Westgyp submitted that 'the only issue is whether the guarantee and indemnity extended to apply to goods supplied under the 2012 Credit Application'.[116] Westgyp referred to cl 1 and cl 1(ii) of the guarantee and indemnity within the 2009 Credit Agreement (set out in [75] above), and said that the judge erroneously paraphrased those provisions in [265] of the primary decision.[117]
[116] Appellant's written submissions, par 32; WB 10.
[117] Appellant's written submissions, par 33; WB 10.
Westgyp submitted that '[o]n its proper construction, cl 1(ii) covers all amounts due in respect of any supply of goods and continues until terminated in writing. The clause would be superfluous in the context of the totality of the document if it was read down in the way it [was] by the … judge'.[118] Further, the judge '[looked] at surrounding circumstances in that he [took] into account that the guarantee [was] part of the 2009 Credit Application' however 'there [was] nothing in … cl 1(ii) that [tied] it to the 2009 Credit Application'.[119]
[118] Appellant's written submissions, par 38; WB 11.
[119] Appellant's written submissions, par 39; WB 11.
Westgyp acknowledged that 'the way courts approach these very wide all‑obligations mortgages is to read them down so that the wide words … do not include situations that would never have been contemplated by the ordinary mortgagor by the use of the words'.[120] Nevertheless, Westgyp submitted that the primary duty of the court is to ascertain the meaning of the document from the words of the instrument in which the contract is embodied, and that this qualifies the scope for evidence of surrounding circumstances to detract from the contractual text.[121] Westgyp referred to Cherry v Steele‑Park,[122] where the court dealt with a guarantee containing a definition of 'Guaranteed Moneys' in broad terms, and concluded that extrinsic contextual evidence was incapable of defeating the wide words of the guarantee.
[120] Appellant's written submissions, par 40; WB 11 citing ANZ Banking Group Ltd v Comer (1993) 5 BPR 11,748, 11,758.
[121] Appellant's written submissions, par 41; WB 11.
[122] Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548 [96], [110] - [117].
Westgyp also submitted that the judge failed to appreciate the significance of the words 'and further agrees' at the end of cl 1. It submitted that the ordinary meaning of those words 'required cl 1(ii) to be read as independent of cl 1'.[123] It also submitted, in effect, in oral argument, that the scope of the guarantee is to be collected from reading the preamble, the stem of cl 1 (including with its reference to cl 9 of the Terms and Conditions), and subclause (ii) of cl 1 as a whole.[124]

Ground 3

[123] Appellant's written submissions, par 36; WB 10.

[124] Appeal ts 82 - 87.

Westgyp submitted that the judge erred in proceeding on the basis that when signing the 2012 Credit Application, Mr Crupi did not signify whether he did so for Northline, for himself, or for both[125] because:
1.The plain language of cl 2(d) 'reveals that the signing provisions are "multi-purpose" in … that they contemplate execution by a corporation, … sole trader and … a partnership'.[126]
2.The plain language of cl 2(d) provides that 'the only means by which the document may be executed by a corporation is by the signature of directors',[127] which is consistent with the objective intention.[128]
3.The intention is that 'when any corporation enters into this agreement, all its directors assume the liability provided for under cl 2(d)'.[129]
4.That would be 'consistent with the evident commercial context which was that [Westgyp] had no intention of offering credit to corporations other than on terms that the directors … also assumed liability'.[130]
5.On a plain reading of the document, there is 'no ambiguity as to the capacity in which Mr Crupi executed the document; he did so to bind the corporation and … himself'.[131]
[125] Appellant's written submissions, pars 47 - 48; WB 12 citing primary decision [273].
[126] Appellant's written submissions, par 49; WB 12.
[127] Appellant's written submissions, par 51; WB 13.
[128] Appellant's written submissions, par 53; WB 13.
[129] Appellant's written submissions, par 51 - 52; WB 13, citing Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236; (2005) 31 WAR 162 [29] ‑ [30]; Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [46] ‑ [52].
[130] Appellant's written submissions, par 53; WB 13.
[131] Appellant's written submissions, par 54; WB 13.
Westgyp submitted, in effect, that the judge was wrong in approaching the issue on the basis that the question of the capacity in which a person signed a document is determined by assessing objective intention on a construction of the document as a whole in its context.[132] Westgyp submitted, in this regard, that the judge ought not to have conducted an examination of the circumstances the judge considered to be relevant at [285] - [289] of the primary decision. Nor should he have conducted a detailed analysis of the textual matters referred to at [290] ‑ [297] of the primary decision. Alternatively, it is submitted that the judge erred in 'the weight that the [he] … gave to [those] matters …'.[133]
[132] Appellant's written submissions, pars 55 - 56; WB 13 citing primary decision [280], [282], [284].
[133] Appellant's written submissions, pars 57 - 58; WB 13.
Westgyp submitted, in effect that the judge erroneously concluded that (1) on its proper construction, cl 2(d) of the 2012 Credit Application was not an obligation assumed by Mr Crupi personally, and (2) in the absence of a common intent that he was to be bound personally, he was not a party to the 2012 Credit Application.[134]
[134] Appellant's written submissions, par 59; WB 13 - 14 citing primary decision [297].
Westgyp also criticised the judge's finding that 'objectively, it defies logic that Mr Crupi would refuse to accept the obligation under cl 9 of the Confidential Personal Guarantee and Indemnity Agreement but nevertheless pick up the same liability under cl 2(d) of the [Credit Terms]'.[135] Westgyp submitted that, in this regard, '[i]t may not defy logic that an individual may decline to indemnify a supplier against losses of any nature but may nevertheless charge property "with the due and punctual observance and performance of all of the obligations of the Customer/Buyer"'.[136]
[135] Appellant's written submissions, par 60; WB 14 citing primary decision [286].
[136] Appellant's written submissions, par 62; WB 14.
Westgyp submitted that the starting point is the words of the agreement, and attention ought to have been given to the signing provisions.[137] Mr Crupi's attempt to amend a standard form document 'in a way he may have perceived was to his advantage is really a matter that goes more to his subjective intention, if it goes to anything at all'.[138]
[137] Appellant's written submissions, par 64; WB 14.
[138] Appellant's written submissions, par 65; WB 14.
Westgyp submitted, again, that there is no ambiguity as to the capacity in which Mr Crupi executed the document, or, therefore, as to the liabilities he assumed. In circumstances where Mr Crupi previously was personally liable, and subsequently believed that he remained personally liable, 'his intention was to have personal liability to the limited extent provided by Westgyp's construction [of cl] 2(d) … although not the fuller personal liability pursuant to the struck out [guarantee and] indemnity'.[139]
[139] Appellant's written submissions, par 66 - 67; WB 14.

Mr Crupi's submissions

Mr Crupi submitted that par 8 of Westgyp's submissions[140] 'constitutes fresh evidence not before the … judge and should be disregarded in so far as it is relevant'.[141]
[140] Paragraph 8 of the appellant's written submissions relates to submissions that the appellant allegedly made at trial, including that it did not receive the 2012 Credit Agreement, that even if it had, the appellant had not accepted it, that the 2009 Credit Application guarantee and indemnity continued to apply, and the 2012 Credit Agreement allowed Westgyp to charge Mr Crupi's property regardless.
[141] Second respondent's written submissions, par 10; WB 23.
As to ground 1, Mr Crupi submitted that the judge correctly identified the principles for determining whether Westgyp accepted the 2012 Credit Application by its conduct. Mr Crupi submitted that his Honour considered the instructions in the 2012 Credit Application as well as the other relevant circumstances, including the dealings between the parties, in determining that Westgyp accepted the 2012 Credit Application by its conduct. Mr Crupi submitted that the judge correctly approached the reasonable bystander test to find the reasonable expectations of a commercial party in the position of Northline.[142] Mr Crupi further submitted, in relation to ground 1, that the judge did not find that Westgyp was required to notify Northline that the 2012 Credit Application was rejected; rather, the judge found that the failure to do so was a relevant consideration.[143]
[142] Second respondent's written submissions, pars 12 - 13, 15 - 19; WB 23 - 27.
[143] Second respondent's written submissions, par 25; WB 28.
Mr Crupi submitted, in effect, on grounds 2 and 3, that the judge's construction of the 2009 Credit Application and the 2012 Credit Application was correct for the reasons he gave.[144]
[144] Second respondent's written submissions, pars 30 - 33, 38 - 46; WB 29 - 33.
Also in relation to ground 2, Mr Crupi relied on post‑contractual events, ie, events occurring after the execution of the 2009 Credit Application, as extrinsic evidence admissible on the proper construction of the guarantee given pursuant to the 2009 Credit Application.[145]
[145] Second respondent's written submissions, pars 34 - 36; WB 31.
Mr Crupi also submitted that the evidence of Westgyp's sole director and/or Mr Crupi as to their understanding and intentions as to whether the 2012 Credit Application was capable of being accepted 'can play no role … given that the issue requires an objective determination'.[146]
[146] Second respondent's written submissions, par 20; WB 27.

Disposition

Ground 1

The question raised by ground 1 is whether, objectively, Westgyp and Northline entered into an agreement on the terms of the 2012 Credit Application. In this context, senior counsel for Westgyp relied on,[147] and for present purposes it is sufficient to refer to, the observations of McHugh JA (as his Honour then was) in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd:[148]
Under the common law theory of contract, the silent acceptance of an offer is generally insufficient to create any contract: Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 at 692 and Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 at 1432; [1966] 3 All ER 128 at 131 ‑ 132. The objective theory of contract requires an external manifestation of assent to an offer. Convenience, and especially commercial convenience, has given rise to the rule that the acceptance of the offer should be communicated to the offeror. After a reasonable period has elapsed, silence is seen as a rejection and not a acceptance of the offer. Nevertheless, communication of acceptance is not always necessary. The offeror will be bound if he dispenses with the need to communicate the acceptance of his offer: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at 269. However, an offeror cannot erect a contract between himself and the offeree by the device of stating that unless he hears from the offeree he will consider the offeree bound. He cannot assert that he will regard silence as acceptance: Felthouse v Bindley (1862) 11 CB (NS) 869 at 875; 142 ER 1037 at 1040 and Fairline Shipping Corporation v Adamson [1975] QB 180 at 189. The common law's concern with the protection of freedom is opposed to the notion that a person must take action to reject an uninvited offer or be bound by contractual obligations.
Nevertheless, the silence of an offeree in conjunction with the other circumstances of the case may indicate that he has accepted the offer: Rust v Abbey Life Assurance Co Ltd [1979] 2 Lloyd's Rep 334 at 340. The offeree may be under a duty to communicate his rejection of an offer. If he fails to do so, his silence will generally be regarded as an acceptance of the offer sufficient to form a contract.
…
The ultimate issue is whether a reasonable bystander would regard the conduct of the offeree, including his silence, as signalling to the offeror that his offer has been accepted. (emphasis added)
[147] Appeal ts 35 - 37, 80.
[148] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, 534 ‑ 535.
It was, in effect, accepted in this appeal,[149] that the 'duty' in the phrase 'a duty to communicate' in the passage in Empirnall above is not a duty in the sense of legal obligation. Rather it is, in effect, a reference to the negative response that an offeree in the circumstances would reasonably need to make to avoid the inference being drawn that they were assenting to the offer. Accordingly, it was not a 'duty' in the legal sense but a conclusion drawn by a process of inferential reasoning within the context of the objective theory of contract.[150]
[149] Appeal ts 36 - 37, 69 - 70.
[150] As to which, see, eg, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) HCA 52; (2004) 219 CLR 165 [40]; see also Fazio v Fazio [2012] WASCA 72 [188] ‑ [190].
In the application of these principles, there is no error in the judge's finding that a contract in terms of the executed 2012 Credit Application was entered into between Northline and Westgyp.
As senior counsel for Westgyp accepted,[151] Westgyp's letter of 16 March 2012 enclosing the pro forma 2012 Credit Application[152] was an invitation to treat, ie, an application sent to Northline, to make an offer to Westgyp for the supply of goods on credit by Westgyp on the Credit Terms of the pro forma 2012 Credit Application. That it was an invitation to treat is evident from its tenor as a whole and, in particular, the references in the document to 'application', or 'your application', and cognate expressions.[153]
[151] Appeal ts 56.
[152] It is convenient to refer to the 2012 Credit Application sent by Westgyp to Northline for execution, as the 'pro forma 2012 Credit Application'.
[153] In the boxes of the pro forma 2012 Credit Application (GB 31 ‑ 32) in the preamble to the 'Credit Agreement Terms and Conditions' (GB 34), and in the wording immediately above the part provided for execution (GB 35).
The pro forma 2012 Credit Application was to the effect that any offer by a customer would not be considered, unless all the terms of the document were fully completed and properly executed, including that part of the document providing for a personal guarantee and indemnity. Westgyp's letter dated 16 March 2012 also emphasised the importance of customers completing the pro forma 2012 Credit Application in full in order to 'avoid any disruptions of supply' (see [80] above).
Both Westgyp's covering letter of 16 March 2012 and the pro forma 2012 Credit Application conveyed to the customer, as proposed offeror, that acceptance by Westgyp would depend upon Westgyp being satisfied as to the credit worthiness of the customer, including by reference to whether the Confidential Personal Guarantee and Indemnity Agreement had been completed and executed.
There was no place in the pro forma 2012 Credit Application for execution by Westgyp. Nor was there any provision in the document which contemplated Westgyp's acceptance of any offer by the customer to be communicated in writing. Both the covering letter of 16 March 2012 and the pro forma 2012 Credit Application indicated that any acceptance of an offer in terms of the executed 2012 Credit Application would be conveyed by Westgyp continuing to provide the customer with goods on credit.
Westgyp, by its agent, Mr Hutton, received an executed offer by Northline on or about 30 March 2012, which (1) included the Credit Terms in the pro forma 2012 Credit Application,[154] and (2) was accompanied by the credit information details sought by Westgyp concerning the credit worthiness of the applicant (Northline) in sections 1 ‑ 6 of the document.[155] The place for the provision of a personal guarantee and indemnity (by Mr Crupi) was, however, struck through. The offer by Northline was not rejected out of hand by Mr Hutton on behalf of Westgyp, as he evidently had no authority to accept or reject the offer. Mr Hutton said, in effect, that he would refer the offer to Mr Hudston (in whom Westgyp's authority to accept or reject the offer evidently resided), but expressed the view that he 'did not think that Mr Hudston, or Mr Hudston's wife, would be particularly happy about it'. Mr Crupi was dismissive of their potential reaction.[156]
[154] GB 34.
[155] GB 31 - 32.
[156] Primary decision [193].
Mr Hutton subsequently gave the executed 2012 Credit Application to Mr Hudston, and Westgyp continued to supply plaster products on credit to Northline.
In these circumstances, the only proper inference is that Westgyp accepted Northline's offer contained in the executed 2012 Credit Application by its conduct in continuing to supply goods to Northline. This was not a case of mere silence on the part of Westgyp in response to Northline's offer, but rather active conduct by the continuance of supply. Nor was Northline's offer an 'uninvited offer' in the sense referred to by McHugh JA in Empirnall referred to in [138] above. The offer by Northline was in the terms proposed by Westgyp in the Credit Terms part of the pro forma 2012 Credit Application. The absence of a personal guarantee and indemnity bore upon whether Westgyp was prepared to accept Northline's offer to purchase goods on credit, but the returned, executed, 2012 Credit Application was not 'uninvited'. The offer was sent in direct response to Westgyp's letter of 16 March 2012. That letter made it plain that whether or not Northline's offer would be acceptable to Westgyp, and if not, whether Westgyp would 'disrupt', or, in other words, withhold or even discontinue, supply, were matters in the sole commercial discretion of Westgyp.
Further, Mr Crupi's oral evidence as to his subjective understanding of whether or not a contract had been entered into between Northline and Westgyp is irrelevant on the objective theory of contract.[157] Also, Mr Crupi's 'apparent admissions' and acknowledgements of personal liability on which Westgyp relied (see [120.5] above), are not, logically, acknowledgements that a contract came into existence binding on Northline and Westgyp in terms of the 2012 Credit Application. In any event, even if the matters relied on are potentially admissible, they are equivocal in that they might equally be explicable on the basis of an acknowledgement of a continuing liability under the guarantee in the 2009 Credit Application.
[157] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [25].
Accordingly, the judge was correct to find that there was a concluded contract between Northline and Westgyp on the executed terms of the 2012 Credit Application.[158]
[158] A similar result was reached in Tu v Primary Contracting Services Pty Ltd [2009] NSWCA 7 [21].
That conclusion is confirmed by, but is not dependent upon, a further consideration. Westgyp's letter dated 5 October 2015 (see [102] above), referring to Westgyp's ability to charge interest at 1.5% per month is an admission that there was then a contract between the parties (Northline and Westgyp) containing such a term.[159] The only contract containing such a term was the 2012 Credit Application.
[159] Port Sudan Cotton Co v Govindaswamy Chettiar & Sons (1977) 2 Lloyd's Rep 5, 11; Slattorie v Pooley (1840) 6 M & W 65; 151 ER 579, 580 ‑ 581; Sasson v Fahevu [1999] NSWCA 400 [31]; see also Salomon Smith Barney Australia Corporate Finance Pty Ltd v Allgas Energy Ltd [2001] QSC 72 [57]; LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74 [58]; AllB Pty Ltd v Beard [2009] NSWSC 1001 [137]; Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115; (2011) 256 FLR 240 [293].

One final matter should be mentioned. The judge also relied, in effect, in this context, on the facts that, under the 2007 and 2009 Credit Applications, the dealings between these parties proceeded on the basis that Westgyp would supply goods on credit after having received an executed credit application by Northline.[160] Neither party argued in this appeal that evidence as to the way in which earlier contracts were formed between the parties was inadmissible on the question of whether the 2012 Credit Application constituted a binding contract. Westgyp's substantive complaint is that the judge erred because he failed to appreciate that the circumstances surrounding the 2012 Credit Application were materially different from those circumstances regarding the executed 2007 and 2009 Credit Applications. Those earlier agreements, it was submitted, reflected all the terms sought by Westgyp when it sent out its pro forma documents, whereas the 2012 Credit Application had not been executed in the manner sought by Westgyp in that the guarantee and indemnity part of the form had not been completed and executed.
[160] Primary decision [243].
Westgyp's submission on this point lacks merit. In relation to each of the 2007, 2009 and 2012 Credit Applications (1) Northline's executed offers as to the agreed terms upon which the goods would be supplied corresponded precisely with the terms of the invitation to treat, and (2) Northline returned the executed offers to Westgyp for its acceptance or otherwise. In each of the 2007 and 2009 Credit Applications, Westgyp's acceptance of Northline's offers was signified by delivery rather than express communication. The only difference was that in the 2007 and 2009 Credit Applications, Mr Crupi also executed and returned a personal guarantee, whereas in 2012, he did not. Nevertheless, in each case, it was open to Westgyp to reject or accept Northline's offer to purchase goods on credit, having regard to the information supplied by Northline in support of the application. The conduct of the parties (Northline and Westgyp) in relation to the 2012 Credit Application was not materially different from their conduct in relation to the 2007 and 2009 Credit Applications. However, even if this point had merit, ground 1 should, in any event, be dismissed for the reasons in [142] ‑ [150] above.

Ground 2

Ground 2 concerns the proper construction of the executed guarantee and indemnity returned to Westgyp as part of the 2009 Credit Application (see [75]). Ground 2 alleges, in effect, that the guarantee and indemnity provided for in the 2009 Credit Application, executed by Mr Crupi on 9 December 2009, continued to apply to goods provided on credit pursuant to the 2012 Credit Application.
As noted earlier, the guarantee and indemnity was executed as a deed.[161] There is no dispute that it was binding on Westgyp (presumably on the basis of delivery of the deed to Westgyp having been effected).[162] The principles relevant to the construction of contracts apply to the construction of deeds.[163] For present purposes, it is sufficient to observe that the general principles in relation to contractual construction were outlined by this court in Black Box Control Pty Ltd v TerraVision Pty Ltd.[164]
[161] Clause 1(x) and the execution part of the guarantee; GB 29.
[162] Scook v Premier Building Solutions Pty Ltd [2003] WASCA 263; (2003) 28 WAR 124 [22] ‑ [41].
[163] Royal Botanic Gardens and Domain Trust v South Sydney City Council [2005] HCA 5; (2005) 240 CLR 45 [9] ‑ [10].
[164] Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42].
It is not necessary to determine the merits of each of the criticisms of the judge's reasoning or to set out in detail his Honour's reasoning as to the construction of the guarantee and indemnity. That is because there is only one true construction, and the task of this court in an appeal concerning the construction of an instrument is to determine for itself the proper construction of that instrument.[165]
[165] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [172].
Whilst the instrument provided for both a guarantee and an indemnity (the terms of which are set out in [75] above), at this point it is convenient to focus on the terms of the guarantee. (The indemnity part of the instrument does not raise any different issues for the purposes relevant to the appeal.) The preamble, the stem of cl 1, and subclause (ii) of cl 1 of the guarantee relevantly provided that:
In consideration of [Westgyp] granting credit to me/us, the proprietors/directors [Mr Crupi] described in this Application declare and agree as follows:
1.I/we the persons named described in this Application [namely Mr Crupi] guarantee … to pay [Westgyp] all monies due and owing and to become due and owing from time to time in respect of credit given inclusive of costs in clause 9 of the Terms and Conditions above … and further agree:
…
(ii)That this guarantee … shall cover all my/our debts to [Westgyp] and shall continue in force until the debt is paid in full together with any other amounts due and written notice of termination is received by [Westgyp] from me/us from any liability under the guarantee … in respect of any supply of goods. (emphasis added)
The following preliminary observations may be made:
1.The executed guarantee was not merely an offer provided to Westgyp for acceptance, or otherwise. As noted earlier, it was binding as a deed on Mr Crupi upon delivery to Westgyp.
2.In construing the guarantee in the 2009 Credit Application, including cl 1 of the guarantee, the general rule is that subsequent events (including, in this case, the 2012 Credit Application) are not admissible on the issue of construction.[166]
3.The guarantee uses the words 'me/us', 'my/our' and 'I/we' rather indiscriminately, and the meaning of those expressions is dependent upon the structure of the guarantee and the context in which those expressions appear within it. The words 'me/us' in the first line of the preamble following the reference to 'consideration' must be taken to refer to Northline, as Northline is the party being granted credit by Westgyp under the 'Terms and Conditions' in the 2009 Credit Application.
4.The parties' expression of consideration is relevant to, but not determinative of, the proper construction of the guarantee.[167] The 'consideration' referred to in the preamble is Westgyp's 'granting credit' to Northline. '[G]ranting credit' in this context, where acceptance of Northline's offer is evidently to be signified by the supply of goods, means the supply of goods on credit to Northline. Accordingly, the consideration is not merely a promise to supply goods on credit, or the entry into an agreement to supply goods on credit to Northline[168] but, rather, the actual supply of goods on credit. Also, as noted earlier, there was no obligation on the part of Westgyp to supply goods to Northline. In substance, the 'consideration' for the guarantee is the supply of goods by Westgyp to Northline on credit. Whether the 'consideration' is intended to refer to the supply of goods on credit under the terms of the 2009 Credit Application only, is a matter discussed later.
5.The words 'in respect of credit given' in the second line of the stem of cl 1 must refer, in this context, to credit given to Northline. Also, the words 'I/we' at the start of the stem of cl 1 evidently refer to the guarantor (Mr Crupi), whereas the words 'me/us' in the last line are evidently a reference to Northline, and to Northline's failure to pay 'any monies owing in respect of the supply of goods … on credit' to Northline.
6.The stem of cl 1 is expressed widely - the guarantee is in respect of (1) 'all monies due and owing', and (2) 'all monies … to become due and owing', (3) 'from time to time', and (4) 'in respect of credit given' (to Northline). Also, the moneys guaranteed include the 'costs in [cl] 9 of the Terms and Conditions above'.
7.The 'Terms and Conditions above' are the 'Terms and Conditions' in the preceding part of the 2009 Credit Application. In substance, the stem of cl 1 refers to all moneys due and owing, and to become due and owing, including the costs in cl 9 of the Terms and Conditions, in respect of the supply of goods on credit to Northline from time to time.
8.Clause 9 of the 'Terms and Conditions' refers in effect to (1) collection costs (including legal and debt collection costs including debt collection commissions), (2) stamp duty and other expenses payable on the 2009 Credit Application, and (3) stamp duty and other expenses on 'any credit application, guarantee or other security document signed by', in effect, Northline. The words 'any credit application signed by [Northline]' must, in this context, refer to some credit application executed by Northline other than the 2009 Credit Application. Westgyp did not contend otherwise in this appeal.
9.In cl 1(ii), the words 'my/our' in the phrase 'cover all my/our debts to [Westgyp]' must refer to Northline's debts. Those words would not ordinarily be read on the tautological basis that the guarantor promises that 'this guarantee … covers all [the guarantor's guaranteed] debts'. In providing a meaning which is harmonious with the guarantee read as a whole,[169] the words must be taken as referring to Northline's debts. Also, the word 'all' in this phrase, although of wide import, does not prima facie apply to any liabilities whatsoever that Northline may have to Westgyp. Rather in context, it appears, as the concluding words of subclause (ii) indicate, to be intended to apply to 'all' of Northline's liabilities 'in respect of any supply of goods'.[170]
10.The word 'debt' in the phrase 'until the debt is paid in full' in cl 1(ii) must mean each and every debt that forms part of the phrase 'cover all [Northline's] debts to Westgyp'.
11.The second part of cl 1(ii) contemplates that the guarantor may by written notice, terminate the guarantee. However, the guarantee continues in force until (a) the 'debt' together with other amounts payable (expenses and the like) are paid in full, 'and' (b) Westgyp receives from the guarantor written termination of any liability under the guarantee and indemnity in respect of any supply of goods. The word 'and' in this context indicates that termination by the guarantor cannot affect the liability under the stem of cl 1 in respect of goods supplied prior to termination.
[166] Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 [35]; Fazio [192].
[167] National Bank of Nigeria Ltd v Oba M S Awolesi [1964] 1 WLR 1311, 1315.
[168] See, eg, Westhead v Sproson (1861) 6 H & N 728; (1861) 158 ER 301; Morrell v Cowan (1877) 6 Ch D 166, 171; Farrow Mortgage Services Pty Ltd (in liq) v Collins [1995] ANZ ConvR 431, 432.
[169] Black Box [42(10)].
[170] cf National Bank of New Zealand v West [1978] 2 NZLR 451, 457 - 458.
Having made those preliminary observations, a number of other matters require further consideration, all of them related. The first is whether the consideration is, objectively, intended to refer generally to the supply of goods on credit, or to the supply of goods on credit (only) under the terms of the 2009 Credit Application. The second is whether 'all monies due and owing and to become due and owing from time to time in respect of credit given' is limited to all moneys due and owing in respect of credit given under the 2009 Credit Application. The third is the effect of the final words in the stem of cl 1 'and further agree', and the meaning of subclause (ii).
The language expressing the consideration for the deed is not confined to the supply of goods on credit under the terms of the 2009 Credit Application. Nevertheless, such a restriction might potentially be discerned from reading the guarantee as a whole, including the Terms and Conditions to which it refers. The question is whether there is anything in the language, properly construed, which points to such a restriction. Further, the Terms and Conditions are admissible on the construction of the guarantee as they form part of the document to which the guarantee expressly refers.[171]
[171] Black Box [42(6)]; Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261 [46] ‑ [47].
The reference in the stem of cl 1 of the guarantee to cl 9 of the Terms and Conditions tends to shed some light on the scope of the guarantee in cl 1. At least part of the point of picking up cl 9 expenses is, presumably, to emphasise that 'monies owing' are not confined to debts for the supply of goods, but extend to expenses. Insofar as Term and Condition 9 extends, in effect, to stamp duty and other expenses in respect of other executed credit applications, the stem of cl 1 of the guarantee provides, in effect, that (amongst other things) the guarantor is to pay 'all monies … owing … from time to time' in respect of stamp duty and other expenses on other executed credit applications, ie, other than the 2009 Credit Application. In substance, an inconsistency arises if the stem of cl 1 is read as confined to the guaranteeing of debts for goods supplied on credit under the 2009 Credit Application (only), when the language used expressly (via cl 9) picks up a liability for stamp duty and other expenses in respect of other executed credit applications. Conversely, insofar as the stem of cl 1 expressly picks up (via cl 9) moneys owed 'inclusive' of stamp duty and other expenses in other executed credit applications, the language supports a construction that, read as a whole, the guarantee applies to, but is not confined in its operation to, a supply of goods by Westgyp under the 2009 Credit Application. Further, the wide and unqualified language of 'all monies due and owing and to become due and owing from time to time in respect of credit given' used in the stem of cl 1 is inconsistent with the limited scope of the guarantee found by the judge. The wide and unqualified language used is apt for an 'all moneys' guarantee.[172]
[172] See, eg, National Merchant Buying Society Ltd v Bellamy [2013] EWCA Civ 452; [2013] 2 All ER (Comm) 674 [12], [40].
The words 'and further agree' suggest that the parties have turned their attention to additional matters concerning the intended scope and operation of the guarantee in the stem of cl 1. One important effect of subclause (ii) is to confirm that the guarantee is a continuing guarantee ('shall continue in force'). As noted earlier, in this context, the words 'from me/us' must be read as a reference to the guarantor (Mr Crupi). That aspect of subclause (ii), in and of itself, tends to be neutral on the issue presently under consideration, in that it may be said to be consistent with reading the stem of cl 1 as being confined to the supply of goods on credit under the 2009 Credit Application, as well as the supply of goods on credit more generally. Nevertheless, the continuing nature of the guarantee is expressed to be conjunctive with an agreement that the guarantee 'shall cover all [Northline's] debts to [Westgyp]'. Also, the concluding words of subclause (ii), 'in respect of any supply of goods', must refer to 'any' supply of goods by Westgyp to Northline, and tend to confirm that the guarantee contemplated by the stem of cl 1 is not confined in the way found by his Honour.
Whilst it is true that general words may be read down in light of the balance of the contract,[173] this is not a case where that principle finds any foothold in the language of the instrument. The correct view, with respect, is that the guarantee in the 2009 Credit Application is not confined to goods supplied on credit under the Terms and Conditions of the 2009 Credit Application. Whilst the language of the guarantee in cl 1 is not as extensive as that used in Cherry,[174] the words 'all monies due and owing and to become due and owing from time to time in respect of credit given' are wide enough to cover money due and owing under agreements for the supply of goods on credit resulting from the execution of other credit applications by Northline.
[173] Cherry [114].
[174] See Cherry [96].
Two further points should be noted. First, the principle of construction that an instrument should be construed as to avoid it making commercial nonsense or giving rise to commercial inconvenience[175] is not infringed by such a construction. There is no inconvenience in construing the guarantee to apply to changes to the terms and conditions on which Northline in the future may order goods on credit, particularly in this case where Mr Crupi is both guarantor and sole director of Northline. Such an agreement makes commercial sense. His personal guarantee would cease to operate if either (1) he discontinued the operation of the guarantee, or (2) he refused, on behalf of Northline, to accept different terms and conditions in the future.
[175] Black Box [42(9)].
Having said that, this is not a case where the alternative construction could be said to give rise to a commercial nonsense or inconvenience either, subject to one possible qualification. A commercial nonsense or inconvenience might arise if it were suggested (and, it should be emphasised, this was not suggested by Mr Crupi or found by the judge) that the stem of cl 1, read with cl 9 of the Terms and Conditions, meant that the guarantee applied to expenses such as stamp duty concerning other executed credit applications, but not to debts for goods actually supplied pursuant to other executed credit applications. That would be, at the least, an odd commercial result. However, as indicated above, that construction was not advanced by Mr Crupi or found by the judge.
Secondly, Northline did not invoke the principle that any doubt as to the construction of the guarantee is to be resolved in favour of the guarantor.[176] In any event, when the guarantee is read as a whole, this is not a case where two constructional choices are available upon which the principle might operate. That is because (1) no confining language is found in the instrument, (2) the parties have used words of wide application, and (3) the express reference to expenses in respect of other credit applications, by incorporation through reference to cl 9 of the Terms and Conditions, is, in substance, inconsistent with the suggested alternative construction favoured by the judge. The fact that the guarantee was executed contemporaneously with Northline's offer to Westgyp in accordance with Westgyp's invitation to treat in terms of the 2009 Credit Application Terms and Conditions, cannot be used to contradict the plain meaning of the guarantee.[177] By 'no stretch of language or syntax' can that contextual evidence defeat or contradict the wide words of the instrument of guarantee.[178]
[176] Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [53]; see also Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549, 561.
[177] Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, 352.
[178] Adopting the language in Cherry [117]. See also National Merchant [40].
Ground 2 should be allowed.

Ground 3

Ground 3 raises the issue of whether Mr Crupi became personally contractually bound to the Credit Terms in the 2012 Credit Application. In particular, the question is whether Mr Crupi signed the 2012 Credit Application in his personal capacity in addition to his execution on behalf of Northline, or whether it was only signed by him on behalf of Northline. The judge found the latter. Westgyp contends, in effect, that Mr Crupi executed the document in his personal capacity, and thereby became bound by the relevant terms.
The principles relevant to issues of this kind were referred to by this court in City & Suburban Group Pty Ltd v Gambetta Holdings Pty Ltd[179] in the following terms:
In Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603, Campbell JA (with whom Mason P agreed) said [262]:
'For the purpose of deciding whether a contract has been entered, or what construction it bears, the common intention that the court seeks to ascertain is what is sometimes called the 'objective intention' of the parties. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had, concerning the subject matter of the alleged contract: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461 [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]; Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912 ‑ 913; 1 All ER 98 at 114 ‑ 115; Taylor v Johnson (1983) 151 CLR 422 at 429; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 ‑ 550.'
Further, in Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299, Allsop P and Handley AJA (Hodgson JA agreeing) said [28]:
'The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a shipowner or time charterer): Starsin at [132] and the cases considered in M Wilford et al Time Charters, 5th Ed, Informa Publishing, 2003, Ch 21. Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances: see Barroora Pty Ltd v Provincial Insurance Ltd (1992) 26 NSWLR 170 at 174; Protean (Holdings) Ltd v American Home Assurance Co (1985) 4 ANZ Ins Cas 60-683 at 74,055 ‑ 74,056; Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460 at 477, 478 ‑ 479 and 486.'
Similarly, in Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909, 923, McHugh JA (as he then was) said:
'A commercial document, however, must be construed in its commercial setting - in accordance with the surrounding circumstances known to the parties: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 ‑ 353. This is so whether the issue concerns construction in the strict sense or whether, as here, the issue concerns the capacity in which a person signs a document.'
[179] City & Suburban Group Pty Ltd v Gambetta Holdings Pty Ltd [2011] WASCA 233 [46] ‑ [48]. See also Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58, 63, 67.

There is no error in the judge's conclusion on this issue. The executed 2012 Credit Application showed Northline (as a proprietary limited company) to be the 'applicant'.[180] The applicant was not a 'sole trader' or a 'business partnership' within the scope of section 2 of the document.[181] In section 2, the reference to Mr Crupi must objectively be taken to be a reference to him as a director of Northline. The Credit

Terms[182] refer to 'your signed application' which, in the context of the preceding part of the document and reading the document as a whole, is a reference to Northline (and not Mr Crupi). On the signing page, the reference in the subheading is to 'signature/s' of the 'applicant', ie, Northline.[183] It contains a reference in the provision underneath to the applicant (Northline) agreeing that there may be other entities of Westgyp which 'may supply goods to me on credit'. The word 'me' must also be taken to be a reference to Northline. It is signed by Mr Crupi not as a 'sole trader', or as a partner in a 'business partnership', but objectively, as a 'director' of Northline.
[180] GB 32.
[181] GB 32.
[182] GB 34.
[183] GB 35.

None of the arguments advanced by Westgyp engages with these clear indications that objectively, the document was signed by Northline and not by Mr Crupi in his personal capacity. There can be no real doubt about that, but if there were any doubt, the point was put beyond dispute when the document designed by Westgyp to create a personal liability, ie, the guarantee and indemnity part of the 2012 Credit Application, was returned to Westgyp struck through and unexecuted. Further, the proposition advanced by Westgyp in [127.3] above, does not make legal sense and the cases said to support it, do not support it.
Ground 3 should be dismissed.

Conclusion

I would allow the appeal on the basis of ground 2.

MITCHELL JA:

The background to this appeal is set out in the reasons of Murphy JA. I will use terms in these reasons in the sense that his Honour has defined them.

Grounds 1 and 3

I agree with Murphy JA, for the reasons that his Honour gives, that grounds 1 and 3 are not established.

Ground 2

Ground 2 concerns whether the guarantee and indemnity under the 2009 Credit Application continued to apply to the supply of goods by Westgyp to Northline under the 2012 Credit Application. This was issue 2(a) identified by the primary judge.

Primary judge's approach

The primary judge resolved that issue in the following manner:[184]
The guarantee and indemnity is as to the credit provided under the 2009 credit application, ie the goods supplied under the 2009 credit application. That is manifest in the preamble to the guarantee and indemnity recording that the obligations are undertaken in consideration of Westgyp granting credit. So too in the reference to 'credit given' and 'credit' in cl 1. In context, remembering that the guarantee and indemnity is part of the wider transaction under the 2009 credit application, the credit applied for, and granted, is that under the 2009 credit application. Clause 1 also unambiguously ties the obligations assumed under the guarantee and indemnity to the credit terms and conditions of the 2009 credit application. The guarantee is as to money due and owing in respect of credit given 'inclusive of costs in cl 9 of the Terms and Conditions above'.
Accordingly, on its proper construction Mr Crupi's guarantee and indemnity under the 2009 credit application only covers debts, including costs, as to goods supplied under the terms of the 2009 credit application. It does not extend to debts arising pursuant to the supply of goods under the 2012 credit application - such as those that are claimed in these proceedings.

Terms of the guarantee and indemnity

[184] Primary decision [267] - [268].

The 2009 Credit Application is an application form presented by Westgyp, completed by Mr Crupi for Northline in relation to the supply of goods on credit, and completed by Mr Crupi on his own behalf in relation to the guarantee and indemnity. The form was not an example of coherent legal drafting.
In particular, the form uses terms such as 'I/we' without properly distinguishing between the party or parties incurring the primary liability (Northline) and the party or parties offering the guarantee and indemnity (Mr Crupi). Sometimes the phrase would only make sense if it referred to the person(s) incurring the primary liability, and at other times the phrase would only make sense if it referred to the guarantor(s) and indemnifier(s). However, the context makes it generally apparent which is intended.
In the present case, substituting the names of Westgyp, Northline and Mr Crupi where appropriate, the guarantee and indemnity is relevantly expressed in the following terms:
In consideration of [Westgyp] granting credit to [Northline], [Mr Crupi] declare[s] and agree[s] as follows:
1.[I, Mr Crupi] guarantee … to pay [Westgyp] all monies due and owing and to become due and owing from time to time in respect of credit given inclusive of costs in clause 9 of the Terms and Conditions above and agree to indemnify [Westgyp] against any loss [or] damages of whatsoever nature incurred by [Westgyp] as a result of [Northline] failing to pay [Westgyp] any monies owing in respect of the supply of goods and service on credit and further agree:
…
(ii)That this guarantee … shall cover all [Northline's] debts to [Westgyp] and shall continue in force until the debt is paid in full together with any other amounts due and written notice of termination is received by [Westgyp] from [Mr Crupi] from any liability under the guarantee … in respect of any supply of goods.

General principles of construction

The applicable principles of contractual construction are summarised in this court's decision in Black Box Control Pty Ltd v Terravision Pty Ltd.[185] The applicable approach was also summarised by the plurality in Electricity Generation Corporation v Woodside Energy Ltd:[186]
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. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". … [U]nless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties … intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". (citations omitted)

Proper construction of the guarantee

[185] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42].

[186] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35].

In terms, the guarantee is a promise to pay Westgyp 'all monies due and owing and to become due and owing from time to time in respect of credit given'. The constructional question raised by ground 2 concerns the meaning to be attributed to the phrase 'in respect of credit given'.
In determining what a reasonable businessperson would have understood that phrase to mean, context is important. Clearly, Mr Crupi was not guaranteeing the repayment of money owing pursuant to credit given by Westgyp to any person, at any time and under any circumstances. The context in which the phrase appears in the agreement makes it plain that it is not objectively intended to capture any money owing to Westgyp so long as the debt can be characterised as being 'in respect of credit given'.
It is also evident from the context that the 'credit' referred to in the phrase 'in respect of credit given' must at least be limited to credit given by Westgyp to Northline. No party in the present case has suggested otherwise. That common ground indicates that the meaning of the words 'in respect of credit given' must be limited by reference to the context in which they appear.
The relevant context is an agreement between Westgyp and Northline as to the terms and conditions on which Westgyp will supply building products to Northline without first demanding payment for the goods. The granting of that 'credit' is expressed to be the consideration for the guarantee and indemnity. The agreed terms and conditions of that credit are set out on the page immediately prior to the guarantee and indemnity. Both the terms and conditions and the guarantee and indemnity are printed on an application form for the establishment of a credit account. That is not a context in which a reasonable businessperson would expect to find an 'all moneys' guarantee.
The provision of credit on the terms and conditions set out in the 2009 Credit Application forms part of the same transaction as the giving of the guarantee and indemnity. In my view, a reasonable businessperson reading the 2009 Credit Application as a whole would understand the phrase 'in respect of credit given' to refer to credit given on the terms and conditions set out on the previous page. That is, in my respectful view, the natural and ordinary meaning of those words in the context in which they appear. Therefore, the guarantee is for Mr Crupi to pay Westgyp all monies due and owing in respect of credit given by Westgyp to Northline on the terms and conditions set out in the 2009 Credit Application. It is not a guarantee to pay Westgyp all monies due and owing in respect of credit given under any different terms and conditions that may subsequently be agreed.

Clause 9 of the terms and conditions

The reference in the guarantee to cl 9 of the terms and conditions tends to reinforce that the guarantee is only given in respect of credit provided under the terms and conditions in the 2009 Credit Application. By cl 9, Northline agrees:
To pay any collection costs (including legal expenses and debt collection commissions) incurred in obtaining payment as an addition to [my] account on a solicitor/client indemnity basis; stamp duties and other expenses payable on these terms and conditions or any credit application, guarantee or other security documents signed by [me], or on [my] behalf, together with any debt collection commission or costs or dishonoured cheque fees. (emphasis added)
Senior counsel for Westgyp points to the emphasised words in the above quotation in support of the proposition that cl 9 is not confined to costs relating to the supply of goods under the terms contained in the 2009 Credit Application.[187] For the following reasons, I do not accept that submission.
[187] Appeal ts 87 - 88.
In general terms, I would not construe cl 9 as being concerned with collection costs for debts not associated with the provision of goods on the terms and conditions contained in the 2009 Credit Application. It would be a commercially odd result for Northline to have agreed to pay indemnity legal costs for the recovery of any debt it might owe to Westgyp, however that debt arose.
In my view, the provision for payment of stamp duties and other expenses on 'any credit application' does not detract from my preferred construction of cl 9 of the terms and conditions or cl 1 of the guarantee and indemnity. Those emphasised words may be taken as allowing for the prospect of more than one credit application leading to an agreement on the terms and conditions in the 2009 Credit Application. For example, it might have been contemplated that a second credit application would be made after a first application was not completed satisfactorily. In that event, cl 9 would provide for Northline to bear any stamp duty and other expenses relating to the first application.

Proper construction of the indemnity

The indemnity in cl 1 is provided as to loss or damage 'as a result of [Northline] failing to pay [Westgyp] any monies owing in respect of the supply of goods and service on credit'. In my view, a reasonable businessperson would understand the reference to 'credit' in this phrase consistently with the way the same term is employed earlier in the clause. That is, the reference to 'credit' is to credit given on the terms and conditions set out on the previous page.

Clause 1(ii) of the guarantee and indemnity

Further, in my view, cl 1(ii) is to be read together with the chapeau to cl 1 of the guarantee and indemnity. Clause 1(ii) refers to 'this guarantee and indemnity', which must be the guarantee in respect of credit given, and the indemnity as to loss or damages resulting from Northline failing to pay money owing in respect of the supply of goods and service on credit.
Westgyp contends that the construction I prefer leaves little if any work for that part of cl 1(ii) which provides:
I … further agree … [t]hat this guarantee and indemnity shall cover all my/our debts to the Company …
So much may be accepted. However, the agreement is drafted in a manner that makes any search for complete legal coherence a fruitless endeavour. If Westgyp's construction is accepted and cl 1(ii) creates an 'all moneys' guarantee, then the words in the chapeau limiting the scope of the guarantee and indemnity are redundant. Either construction produces redundancy, so that the presumption against surplusage[188] does not materially assist in resolving ground 2.
[188] See George 218 Pty Ltd v Bank of Queensland [No 2] [2016] WASCA 182; (2016) 313 FLR 287 [88]; Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114 [52] ‑ [58].
The preferable view, in my respectful opinion, is that a reasonable businessperson reading the 2009 Credit Application as a whole would not understand the words of limitation in the chapeau of the guarantee and indemnity to be superfluous.

General approach to the construction of guarantees and indemnities

My view as to the proper construction of the guarantee and indemnity is reached independently of, but is reinforced by, the general principle that a doubt as to the proper construction of a provision in a contract of guarantee and indemnity should be resolved in favour of the surety or indemnifier.[189] A reasonable businessperson would expect that if Westgyp, as the party putting forward the 2009 Credit Application, wished to secure an 'all moneys' guarantee and indemnity it would have used clear and unambiguous language to do so.
[189] Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [53].

Conclusion and orders

In my view, the primary judge was correct to conclude, for the reasons given by his Honour, that, on its proper construction, the guarantee and indemnity only covered debts relating to goods supplied under the terms of the 2009 Credit Application. It does not extend to debts arising in relation to the supply of goods under the terms of the 2012 Credit Application.
In my view, ground 2 is not established and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
20 SEPTEMBER 2019