Case: Apple Computer Australia Pty Ltd v Mekrizis [2003] NSWSC 126
Outcome: cited
law is clear that contractual provisions in a guarantee are to be construed strictly, and, in relation to provisions for the benefit of the principal, contra proferentum : Ankar Pty Ltd v National Westminster Finance (Aust) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 561; Apple Computer Australia Pty Ltd v Mekrizis [2003] NSWSC 126 at [127] . In relation to the 1998 profit shortfall however, it is clear that the fact and amount of a profit shortfall for 1998 were agreed, on an informed basis, by Mr Poh on behalf of both applicants and Mr Forbes. Failing other reasons which have been advanced by the respondents, and to which I shall turn shortly, in my view the amount of $127,284 represents the profit shortfall for the year ending 31 December 1998 for the purposes of cl 3.3 of the share sale agreement and is recoverable from Mr Forbes by the applicants pursuant to the Forbes Guarantee. 2. What is the position of Mrs Forbes in relation to the 1998 profit shortfall? As I have already observed, as a general proposition the law construes terms in guarantees contra proferentum in the surety's favour. It is clear that the profit guarantee under cl 3.3 exists solely for the benefit of Forbes Asia. Such a clause should be strictly construed ( Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 38 SASR 70 at 71, Apple Computer [2003] NSWSC 126 at [127] , O'Donovan J &amp; Phillips J, The Modern Contract of Guarantee (4th ed, looseleaf) at 5.920). The legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example: