Australia: Suppliers and lenders take note - ensure that personal guarantees have been drafted and executed properly before advancing credit to customers

Last Updated: 5 June 2018
Article by Laszlo Konya and Ben Drysdale

The recent case of FJ & SM Monaghan Pty Ltd v Slade [2018] NSWCA 79 has reiterated the importance of suppliers and lenders obtaining personal guarantees that have been carefully drafted in order to enforce them.

The importance of properly drafted guarantees

Although judgement was eventually awarded against the guarantors, it took nearly five years and several arduous court proceedings for the supplier to achieve this result. Had the guarantee been worded even slightly differently, the supplier may have been unsuccessful.

This case highlights the importance of guarantees that are clearly and thoroughly articulated and that, from a creditor's perspective, expressly state that they cover all past, present and future debts owed, in the form of a continuing guarantee.

Pointon Partners has extensive experience in drafting credit terms and conditions for suppliers and general finance documents.

Contact us to have a comprehensive guarantee drawn up before advancing substantial credit or loans to customers.


Between 2001 and 2013, FJ & SM Monaghan Pty Ltd (Monaghan), operated a petrol station and provided fuel on a running account to "Slade Refrigerated Transport" (Slade), a company of which a husband and wife were the sole director and sole shareholder, respectively.

From 1 July 2006, Slade's overdue account with Monaghan incurred interest at a compound rate of 2.5% per month (around 34.5% per annum).

When arrears continued to increase into 2008, Monaghan instructed a solicitor to prepare a document under which the Stephen and Wendy Slade would personally guarantee the monies owing by Slade. Monaghan threatened to cease supply of fuel if the guarantee was not provided.

On 29 July 2008, the Slades opted instead to personally guarantee the debt by providing a one page letter that read as follows:

This letter is to explain that we Stephen Slade and Wendy Slade are Directors of S & W Slade Pty Ltd trading as Slade Refrigerated Transport.
We personally guarantee the debt with F & S Monaghan for fuel supplied to Slade Refrigerated Transport.
Yours sincerely

The primary decision

In 2013, Monaghan brought a proceeding in the District Court of NSW against Slade and the guarantors for the outstanding balance on the running account, plus interest.

The key issue in that proceeding was whether the guarantee covered an amount outstanding on the date of the guarantee, or thereafter from time to time.

As payments had been made by Slade in partial discharge of its underlying liability to Monaghan, the guarantors would only be liable if the guarantee covered the amount outstanding from time to time, including interest.

The primary judge held that the guarantee only covered the balance outstanding on 29 July 2008, albeit including interest, and dismissed the claim. Monaghan appealed against that judgment.

Including interest in the personal guarantee

The Court of Appeal confirmed the trial judge's finding that interest was properly construed as being included in the guaranteed amount.

In reaching their decision, the Court of Appeal noted that the only amount which could plausibly be described as the singular "debt with F & S Monaghan for fuel supplied to Slade Refrigerated Transport" was the running balance outstanding, which included interest to that date.

Whether the personal guarantee covered amounts outstanding from time to time

At trial, the primary judge had held that the reference to 'the debt' for 'fuel supplied' referred only to past indebtedness. On appeal, the Court found that the primary judge had erred in relying on this textual consideration.

When constructing the guarantee, the Court of Appeal looked to the surrounding circumstances to determine that the guarantee was a 'continuing guarantee' for the balance due from Slade to Monaghan from time to time.

In particular, the statements of account issued to Slade at the end of each month did not treat debits for fuel or interest at particular times or in particular periods as separate debts. Nor did they explicitly apportion any payments made by Slade, other than in reduction of the running account.

Nothing in the evidence suggested to the Court of Appeal that the debt between Monaghan and Slade would cease to be a single, but fluctuating, balance on the account.

Further, the guarantee was given in response to Monaghan's ultimatum to cease supplying fuel unless a guarantee was provided. The commercial purpose was therefore to secure the continued supply of fuel and credit on the terms of the existing running account.

The Appeal was allowed and judgement was entered in favour of Monaghan against the guarantors in the amount of $750,000, being the jurisdictional limit of the original District Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Laszlo Konya
Ben Drysdale
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions