Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135 (11 June 2019) (Bathurst CJ at [1]; Leeming JA at [15]; McCallum JA at [122])


Catchwords:


CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to permit guarantor to enforce provision – whether “privity” entitled guarantor to rely on provision – whether sufficient that provision was clear and unambiguous – whether provision on true construction amounted to unilateral renunciation of right of indemnity

EQUITY – set-off in equity – requirement of impeachment – whether debt owed by parent company impeached appellant’s debt to respondent – no error in conclusion by primary judge that impeachment not made out