“In consideration of ING agreeing to make available facilities or other accommodation for so long as it may think fit to the Company the Guarantor hereby unconditionally and irrevocably guarantees to ING the due and punctual payment and discharge by the Company of, and, if for any reason the Company does not make such payment or discharge, promises to pay or discharge or cause to be paid or discharged on demand of ING, all monies, obligations and liabilities whether actual or contingent now or hereafter due, owing or incurred to ING by the Company in whatever currency denominated whether alone or jointly and in whatever style, name or form and whether as principal or surety including all liabilities under guarantees or indemnities or any instruments whatsoever from time to time entered into by ING for or at the request of the Company, together with interest (as well after as before judgment) to the date of payment at such rates and upon such terms as may from time to time be payable by the Company (or which would have been so payable but for the liquidation or other incapacity of the Company) commission, fees and other charges and all legal and other costs, charges and expenses incurred by ING in relation to the Company or this Guarantee on a full indemnity basis (all such sums together, the “Guaranteed Amounts” which expression shall include any part therefore).”
“I cannot now recall whether it was in that particular meeting or in another one of the series of meetings that took place when Mr Harwood said that he was prepared to help ING out of this mess and buy the business by taking on the Coin TV debt. However, Mr Harwood made it clear that if he was going to take on the mess that was Coin TV, which was not of his making, and take on the debt due to ING then he would only do so on the basis that he would not provide any personal guarantees whatsoever. This was entirely sensible and reasonable given the state of the business and the very limited security that ING held. There was no viable alternative course of action, any other course of action would have created a significant write off in the books of ING if not a total loss. I remembered that Mr Dramby and Mr Tagg agreed that they would proceed on this basis. I was not aware from any subsequent meetings that that agreement had changed”
“The reason for this is that Mr Harwood was helping ING out of a difficult situation and the liability which he was taking on was not supported by security of any value. If Mr Harwood had not agreed to take on the debt then ING would have had no other option but to write it off. ING was grateful that Mr Harwood was prepared to take on this debt. In those circumstances, ING was prepared to agree that it was not a debt for which he would be personally liable.”
“VRG as a Group are also assisting ING in managing the Coin TV portfolio where their expertise has been invaluable during the CVA liquidation”
“Cross guarantees issued by all the Group companies. VRG’s owner/ manager is personally liable for the total VRG exposure.”
“In the unlikely event of default and unlike the scenario ING faced with Coin TV the collection could be continued as collection staff work on a fully employed basis. We also have the personal guarantee of majority shareholder Phil Harwood, which should ensure his full cooperation.”
“The Managing Director, Philip Harwood, is personally liable.” “There is in place a full composite cross company guarantee of all Group companies plus the support of the personal guarantee of Chief Executive and major shareholder Phil Harwood.”
“The owner/manager is personally liable (albeit his personal financials are not available) and a full composite cross company guarantee of all Group companies is in place.” “We will have a cross-guarantee from all Group companies . . . . and the personal guarantee of the owner.”
“Executed unlimited personal guarantees of Phil Harwood (already held).”
“The Managing Director, Philip Harwood, is personally liable.”
“As you will be aware, we are releasing the security that we retained in respect of our agreement with Value Rentals Group Limited, Homebuy Direct Limited and Blackfriar Finance Limited (the “Companies”) and also re-assigning to the Companies all leases, hire purchase and conditional sale agreements that have previously been assigned to us by the Companies. In consideration of our agreeing to do so, by signing this letter you agree that notwithstanding the aforementioned release of security and re-assignment, the Guarantee shall remain in full force and effect and shall not be affected or discharged by the transaction mentioned.”
“It is agreed and acknowledged that notwithstanding any release, reassignment or confirmation contained herein, nothing in this letter is intended to nor shall have the effect of extending the scope or operation of the Guarantee.”
“The relevant legal principles regarding the recognition of pre-contractual promises or assurances as collateral warranties may be stated as follows: (1) a pre-contractual statement will only be treated as having contractual effect if the evidence shows that parties intended this to be the case. Intention is a question of fact to be decided by looking at the totality of the evidence; (2) the test is the ordinary objective test for the formation of a contract; what is relevant is not the subjective thought of one party but what a reasonable outside observer would infer from all the circumstances; (3) in deciding the question of intention, one important consideration will be whether the statement is followed by further negotiations and a written contract not containing any term corresponding to the statement. In such a case it will be harder to infer that the statement was intended to have contractual effect because the prima facie assumption will be that the written contract includes all the terms the parties wanted to be binding between them; (4) a further important factor will be the lapse of time between the statement and the making of the formal contract. The longer the interval, the greater the presumption must be that the parties did not intend the statement to have contractual effect in relation to a subsequent deal; (5) a representation of fact is much more likely intended to have contractual effect than a statement of future fact or a future forecast.”
“If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.”
“Does not extend to any monies, obligations, or liabilities, whether actual, or contingent now or hereafter due, owing or incurred to ING by Homebuy Direct (UK) Limited (formally known as Etchco 1133 Limited) or its successors in title where that indebtedness relates to or arises out of the indebtedness of Coin TV Limited to ING, which indebtedness was acquired by Homebuy Direct (UK) Limited pursuant to an agreement entered into between ING and Etchco 1133 Limited on1 August 2002 .”
“There is, however, another form of implication, which is more pertinent in the present case. It is not permissible to imply a term simply because the court considers it to be reasonable. To do so would amount to a process of rewriting contracts. See Liverpool City Council v Irwin [1978] A.C. 239. On the other hand, it is possible to imply a term, if the court or arbitrator, as the case may be, is satisfied that reasonable men, faced with the suggested term which ex-hypothesis was not expressed in the contract, would without hesitation say: “yes, of course, that is so obvious that it goes without saying.”
“It is true that the way in which consideration for a contractual obligation is expressed is not conclusive but it is relevant in construing the terms of the contract itself.”
“All monetary and other obligations whether actual or contingent now or hereafter due, owing or incurred to ING by the Company in whatever currency denominated whether alone or jointly and in whatever name or form and whether as principal or surety and whether arising in or by contract, tort, restitution or assignment including (but not limited to): (a) All obligations under any instrument whatsoever from time to time entered into by ING with, for or at the request of the Company; . . . .”
“It does seem strange that a man may lock up his counting-house and go home for the night, in the comfortable knowledge that his only secured creditor is his banker, to whom he owes a trifling sum secured by the usual boundless bank instrument, and unlock the door in the morning to find that, by virtue of assignments of the large but unsecured debts owed by him to his fellow merchants, and indeed to the butcher, the baker and the candlestick maker, all his unsecured debts have gone to feed his banker’s insatiable security, so that every one of his debts is now secured.”
“It seems to me that the provision in Cl 12(c) for the payment of interest on “the moneys hereby secured” tends strongly against any suggestion that moneys owed originally by the mortgagor to a third party, but assigned to the mortgagee, would come within the expression “the moneys hereby secured”
“Equally, it is accepted that “all moneys” clauses in guarantees and mortgages are to be “confined in their operation by reference to the context in which they appear and by reference to the commercial purpose which they were intended to serve in”, and he referred to the observations of Gleeson CJ in Fountain v Bank of America National Trust & Savings Association (1992) 5 BPR 11,817 at 11,819-11,820. At paragraphs 84 and 85 he said: “There is no need to accept the entirety of the approach (and the guidelines) proposed by Young J in Estoril Investments Pty Ltd v Westpac Banking Corp (1993) 6 BPR 13,146 and other cases, in order to accept the proposition that, in many cases, an “all moneys” clause will not be construed to secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time of entering the contract. In construing such a clause, a court confines its operation by reference to its context and commercial purpose. It is essentially those considerations which, in my view, lie at the heart of such cases as Estoril; Australia & New Zealand Banking Group Ltd v Comer (1993) 5 BPR 11,748 per Young J; and Jageev Pty Ltd v State Bank of New South Wales (No. 2) (unreported, SC(NSW), Sperling J,26 March 1996 ); and which are consistent with the comments of Lindgren J in Radin v Commonwealth Bank of Australia [1998] FCA 1361 at pars 200-202. Having regard to the context of the “all moneys” clause in the guarantee in this case (or, for that matter, in the mortgage) and to its commercial purpose as disclosed in the other transaction documents, I can readily accept that the clause would not secure tortious liability, or, indeed, some other liability disparate in kind to that arising from the provision of financial accommodation.”
“For example, it could not be said that it was the parties common intention that [the bank] could call upon the guarantors to pay an amount equal to the damages [the bank] might have sustained in consequence of some deceit practiced by the company. Nor could [the bank] require the guarantors to make good the company’s share of any partnership losses in the unlikely event that [the bank] and the company undertook a partnership venture. In the particular context, imposition of such liabilities does not accord with the common intention of the parties although those liabilities do fall within the general words of [the relevant clause of the guarantee].” “There is no need to accept the entirety of the approach (and the guidelines) proposed by Young J in Estoril Investments Pty Ltd v Westpac Banking Corp (1993) 6 BPR 13,146 and other cases, in order to accept the proposition that, in many cases, an “all moneys” clause will not be construed to secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time of entering the contract. In construing such a clause, a court confines its operation by reference to its context and commercial purpose. It is essentially those considerations which, in my view, lie at the heart of such cases as Estoril; Australia & New Zealand Banking Group Ltd v Comer (1993) 5 BPR 11,748 per Young J; and Jageev Pty Ltd v State Bank of New South Wales (No. 2) (unreported, SC(NSW), Sperling J,26 March 1996 ); and which are consistent with the comments of Lindgren J in Radin v Commonwealth Bank of Australia [1998] FCA 1361 at pars 200-202. “For example, it could not be said that it was the parties common intention that [the bank] could call upon the guarantors to pay an amount equal to the damages [the bank] might have sustained in consequence of some deceit practiced by the company. Nor could [the bank] require the guarantors to make good the company’s share of any partnership losses in the unlikely event that [the bank] and the company undertook a partnership venture. In the particular context, imposition of such liabilities does not accord with the common intention of the parties although those liabilities do fall within the general words of [the relevant clause of the guarantee].”
“In consideration of you at our request making a loan to us of£250,000 and taking an assignment of a debt owed jointly and severally by [the Menon brothers] . . . . (jointly and severally “the Borrowers”) to ANZ Grindlays Bank Plc of a principal amount of£250,000 plus interest and costs we hereby agree as follows: (1) In consideration as aforesaid we guarantee payment or discharge to you on demand in writing (free of any deduction, set off or counterclaim) of all monies and liabilities which shall for the time being be due and owing or incurred by the Borrowers whether actually or contingently and whether solely or jointly with another person including interest, costs or other lawful charges and expenses including any further advances made by you to the Borrowers . . . .”
“If it is possible to bring any debt incurred by any of the Menon brothers under the cloak of the guarantee and charge merely by taking an assignment, then it is possible to change unsecured debts into secured ones and alter the rate of interest without any consent on the part of the Menon brothers, still less on the part of Kova. Vulnerable though Kova no doubt is as guarantor of future liabilities of the Menon brothers capable of being incurred without Kova’s consent, they would at least have to be incurred with the consent of the Menon brothers themselves; and given the connection between Kova and the brothers, that it at least some protection. No such protection can apply to a loan, obtained originally on the basis that it was unsecured, which becomes subject to the security by an assignment. I do not consider that it can be said to have been the intention of the parties that Kova should be placed in that position, and I decline to construe the facility letter, guarantee and charge as having that effect.”