ByLawyers News and Updates

Guarantees – All states

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A recent case on guarantees and indemnities has been added to the By Lawyers Deeds and Agreements commentary.

Deeds and agreements for general and specific purposes are provided in every By Lawyers matter plan. The commentary provides assistance with drafting these documents.

In Taylor Square TT Pty Ltd v Kinselas Pty Ltd (No 2) [2024] NSWSC 987 the court considered at [20] – [29] the principles of construction for guarantee clauses, and ultimately ordered specific performance against the guarantor.

The court’s analysis sheds helpful light on the interplay between guarantees and indemnities which is covered in the Deeds and Agreements commentary under the heading Indemnities, guarantees, and warranties. The cases cited include Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 which is also included in the Deeds and Agreements commentary as authority for the distinction between a guarantee and an indemnity:

Simply stated a guarantee is a binding promise of one person to be answerable for the debt or obligation of another if that other defaults. The distinctive feature of a contract of guarantee is the secondary nature of the obligation which is assumed by the guarantor. There must be another person who is primarily liable.

In contrast, under an indemnity, a person assumes a primary liability. A contract of indemnity is a contract by one party to keep the other harmless against loss and is not dependent on the continuing liability of the principal debtor. An indemnity is an independent obligation to make good a loss.

The Deeds and Agreements commentary is located in the sub-folder of General deeds, agreements, execution clauses, and statutory declarations that appears in folder A. Getting the matter underway on all By Lawyers matter plans.

A link to the Kinselas case has been added to the drafting tips in the commentary.

Non-disclosure – All states

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Non-disclosure agreements and clauses have been added to all By Lawyers guides. These precedents augment the existing Confidentiality Deed and clauses in the Folder of Blank Deeds, Agreements and Statutory Declarations in Folder A. Getting the matter underway on every By Lawyers matter plan.

In general, non-disclosure is passive and unilateral, whereas confidentiality is active and bipartite. The former generally requires a party simply not to reveal or release confidential information, whereas the latter requires a party to take positive steps to keep information secret and safe.

There are also other distinctions to be drawn when dealing with confidential information. Sometimes only one party is to provide confidential information to the other. In other cases, two or more parties propose to exchange it. Sometimes the parties wish only to protect the contents of their agreement, whereas sometimes they wish to protect other specific information relevant to their decision to enter into the agreement, or relevant to the subject matter of the agreement.

The various By Lawyers deeds and agreements and precedent clauses have been revised and enhanced to encompass these distinctions.

The commentary on Deeds and agreements in the Folder of Blank Deeds, Agreements and Statutory Declarations has also been enhanced to cover these points.

Apart from the precedents available in the Folder of Blank Deeds, Agreements and Statutory Declarations, relevant precedents relating to non-disclosure and confidentiality are also located in various guides as required.

Adding these non-disclosure agreements and clauses, and revising the existing confidentiality deeds and clauses, is part of By Lawyers continual commitment to the expansion and enhancement of our content.

Amended precedents:

Deed for general use

Agreement for general use

Confidentiality deed

Confidentiality clause for defined information – All parties

Confidentiality clause for defined information – One party

New precedents:

Non-disclosure agreements – Informal

Non-disclosure agreement – Formal

Confidentiality clause for terms of agreement – All parties

Confidentiality clause for terms of agreement – One party

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