PRACTICE AND PROCEDURE - consideration of an application by the applicant seeking orders to prevent the respondent from enforcing a guarantee - where the applicant was the subcontractor on a construction project - where the applicant's bank provided a guarantee to the main contractor's bank - whether the guarantee secures the applicant's obligations to the main contractor under a separate agreement - whether the guarantee secures the main contractor's obligations to its bank.
BANKING AND FINANCIAL INSTITUTIONS - consideration of the proper construction of the guarantee - where the guarantee is in the nature of a performance bond or demand guarantee and not a contract of suretyship - where the true nature of the document is to be ascertained from its terms and conditions - where the guarantee was provided by the applicant's bank to the main contractor's bank - where there is no underlying agreement between the applicant and the respondent - where the guarantee places a primary obligation on the applicant's bank to pay to the respondent the amount specified in a written demand in accordance with the guarantee - where the obligation under the guarantee is independent of the underlying agreements between the applicant and the main contractor.
CONSUMER LAW - whether the respondent engaged in misleading or deceptive or unconscionable conduct under the Australian Consumer Law in procuring or enforcing the guarantee - where the applicant sought to rely on what it claimed was a species of unconscionable conduct that arises where the assertion or reliance on a legal right is, in the circumstances, unconscionable - where there is very limited scope for holding unconscionable conduct in a case involving a performance bond or demand guarantee - where the respondent had no obligation to make further inquiries into the conduct of the main contractor before calling on the guarantee - where the respondent was not bound to pursue repayment of the amount secured by the guarantee through a term deposit also held by the respondent - where the respondent was entitled to take immediate action on the guarantee.
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