Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242; Cao v Baccello Pty Ltd [2020] WASCA 82, referred to.

1. This dispute concerns the liability of the applicants, who had guaranteed the obligations of a lessee, APlus Capital Pty Ltd ('APlus'), in respect of leases of 22 serviced apartments with the landlord‑respondents. The guarantee was given as part of the assignment of each of the leases to APlus as the new tenant pursuant to deeds of transfer of lease entered into in 2017. After the leases had been terminated, APlus remained in possession of the apartments pursuant on a monthly periodic tenancy. As each of the 22 leases and each of the deeds of transfer were in substantially the same terms, for convenience and where appropriate, we will refer to them as the 'Lease' and the 'Transfer Deed', respectively.
2. A judge of the Trial Division concluded,[1] based on his construction of the Transfer Deed, that the guarantee extended to the obligation to pay rent not only under the Lease, but for any period that APlus remained in possession of the premises after the Lease ended pursuant to the terms of a new agreement. As a result, the judge found the guarantor liable for rent payable under the periodic tenancy agreement after the Lease ended.
3. For the reasons that follow, we have concluded that the guarantee only extended to obligations to pay rent under the Lease after the Lease expired; it did not extend to obligations to pay rent pursuant to a new lease agreement entered into after the expiration of the Lease. Because the rent payable under the periodic tenancy was not payable under the Lease, the appeal must be allowed and the orders of the judge set aside.

1. In about 2005, each of the apartments in issue was leased to Quest Studley Park Pty Ltd ('Quest') until 30 April 2010. Each Lease provided an option for four further terms of five years. Quest's business was to lease apartments for short and long term accommodation.
2. Between about May 2010 and July 2010, Quest and each apartment owner entered into a Deed of Renewal of Lease, by which they recorded that the first option for a further term had been exercised, and that variations had been made to each Lease.
3. On about 1 July 2014, the Lease was transferred from Quest to Beaumont Kew Hotel Pty Ltd ('Beaumont Kew'). At that time, the Lease included terms that:

(a) the Term was for five years commencing 1 May 2015 with an option for three further terms of five years;

(b) the 'Rent' was the rent at the commencement of the Term or as varied in accordance with the terms of the Lease, which in summary provided for an annual 4 per cent increase with market review of the first day of each further term;

(c) if the tenant remained in possession 'without objection by the Landlord after the end of the Term', then the tenant became a monthly tenant 'on the conditions in this lease, modified so as to apply to a monthly tenancy' subject to the following express terms:

(i) each party may give one month's notice to terminate the monthly tenancy; and

(ii) the landlord may increase the Rent by giving one month's notice

1. In about December 2016, Beaumont sold its interest in the accommodation business and the Leases to APlus. Beaumont also sought and obtained the landlords' consent to the assignment of each Lease to APlus which also intended to lease each apartment for short and long term accommodation.
2. As a result, between about January 2017 and August 2017, each Lease was assigned and/or transferred by Beaumont to APlus pursuant to each Transfer Deed titled 'Transfer of Deed of Renewal of Lease'. This title reflected the fact that Beaumont was in possession pursuant to the renewal of the Lease referred to in [5] above. The recitals to each Transfer Deed set out the details of the Lease, namely the relevant apartment, the Term of the Lease, its commencement date and the further options under it as set out in [6] above.
3. The parties to each Transfer Deed were:

(a) the relevant landlord‑respondent (defined therein as the 'Landlord');

(b) Beaumont (defined therein as the 'old Tenant');

(c) the original guarantor under the Lease (defined as the 'old Tenant's guarantor');

(d) APlus (defined therein as the 'new Tenant'); and

(e) the applicants (defined therein as the 'new Tenant's guarantor').

1. We pause to note that the first applicant and the second applicant were and are the director and secretary of APlus, respectively.
2. The recitals of each Transfer Deed also record that each Transfer Deed took effect from 16 January 2017 (defined as the 'Transfer Date') and stated the 'Rental' was the specified annual rental per annum, which then applied in respect of the Lease to which the Transfer Deed related.
3. The relevant clauses of each Transfer Deed are:

1. TRANSFER

1.1 The old Tenant transfers the lease to the new Tenant with all options. The new Tenant will hold the lease from the transfer date.

...

3. ASSIGNEE ACCEPTS OBLIGATIONS

The new Tenant must pay the Rent and do everything else required by the lease for the remainder of the lease and during any period it stays in possession after it ends.

4. INDEMNITY BY ASSIGNEE

The new Tenant indemnifies the old Tenant so that the old Tenant will not be responsible for breaches of the lease by the new Tenant.

5. ASSIGNOR STILL LIABLE

Unless s62(2) of the Retail Leases Act 2003 ('the Act') applies this transfer does not end the obligations of the old Tenant under the Lease; those obligations continue until the end of the lease, but do not continue into any period of overholding after this Lease ends, nor unto any renewed term.

6. ASSIGNOR'S GUARANTOR STILL LIABLE

Unless s62(2) of the Act applies, this transfer does not end the obligations of the old Tenant's Guarantor under any guarantee or indemnity; those obligations continue until the end of the Lease, but do not continue into any period of overholding after the Lease ends, nor into any renewed term.

1. The guarantee given by the applicants is in cl 8, which provides:

8. GUARANTEE AND INDEMNITY

The new Tenant's guarantor -

8.1 Guarantees to the landlord and to the old Tenant that the new Tenant will pay the rent promptly and will do everything the lease requires.

8.2 Agrees that this guarantee is to a continuing guarantee which will not be affected by:

- part-payment,

- part-performance,

- extension of time given by the landlord, or

- non-registration of the lease,

8.3 Must indemnify the landlord and the old Tenant so that they suffer no harm from breaches of the lease by the new Tenant, including losses resulting from the insolvency or winding‑up of the new Tenant.[2]

The Lease Ends and the New Lease between Each Landlord and APlus

1. On 3 September 2018, the Landlords accepted APlus's repudiation of each Lease, thereby bringing each Lease to an end. The Landlords then permitted APlus to remain in possession on a month‑to‑month basis on the same terms as set out in each Lease, modified as necessary for month‑to‑month purposes. All parties accept that this was a new agreement to lease and that APlus did not remain in possession pursuant to the overholding provisions in cl 11 of the Lease. APlus remained in possession until 2 January 2019.

The VCAT Proceeding and Appeal to the Trial Division

1. In April 2019, the Landlords issued proceedings in the Victorian Civil and Administrative Tribunal against APlus for recovery of unpaid rent during APlus's occupation of the premises and other outgoings following the termination of the Leases. Accordingly, the Tribunal made an order for the payment of an aggregate sum of $209,395.67 (which included amounts for general cleaning and minor repair works in addition to rent). The Tribunal also found that the applicants were liable for the amounts payable by APlus on the basis of cl 8 of each Transfer Deed.
2. The applicants sought leave to appeal the Tribunal's orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. They contended that the Tribunal erred in law in holding that they were liable under each Transfer Deed in respect of obligations of APlus to the Landlords that arose after the termination of each Lease. This is because, on its proper construction, the Transfer Deed only guaranteed APlus's obligations under each Lease and not any obligations that arose under a new agreement (such as a periodic tenancy) subsequent to the termination of each Lease on 3 September 2018.
3. The judge dismissed their application for leave to appeal.[3] The judge provided detailed reasons for his decision. For the purposes of this application, the judge's reasons may be summarised shortly.
4. After setting out the principles applicable to the interpretation of guarantees, the judge considered that the obligations guaranteed by cl 8.1 of the Transfer Deed included the obligation to pay rent beyond the termination of the Lease. This was for a number of reasons, most relevantly including that:

(a) at the time they signed the Transfer Deeds, the applicants must have known that they were guaranteeing obligations under each Lease for the remainder of the five year term and that the Tenant's obligations under cl 3 continued if they stayed in possession of the leased premises: a reasonable businessperson reading the guarantee would take these matters into account;

(b) clause 3 indicates that a Tenant who remains in possession following the termination of the Lease 'was obliged to continue to pay rent at the rate payable before the Leases ended, and to continue [to] do everything else that the Leases had required before they ended'.[4] In that way, the Tenant's obligations 'under the Leases were continued', including on a basis of occupation other than pursuant to the Lease;[5]

(c) by its terms, cl 8.1 does not specify the durational limits of the obligations in respect of which the guarantee concerns;

(d) clauses 3 and 8.1 contain some similar words and must be read together with the result that the requirement under cl 8.1 to guarantee to 'pay the rent' could only mean the rent required to be paid under cl 3;

(e) the word 'lease' in cl 8.1, consistent with cl 3.1, imposes 'obligations both for occupation of the apartments prior to the end of the Leases and during any period of post‑lease occupancy by the Tenant';[6] and

(f) neither the strict rule of construction of guarantees - the strictissimi juris principle[7] - nor the contra proferentem rule of construction would lead to a different result.

1. The applicants now seek leave to appeal in this Court against the judge's decision. While the application for leave to appeal consisted of four proposed grounds of appeal, in truth there is but a single ground: that the judge erred in his construction of cl 8.1 including by not construing this guarantee in favour of the guarantors in the event of any ambiguity or uncertainty as to its meaning[8] and ought to have found that it did not extend to guaranteeing APlus's obligations to pay rent and other outgoings for its occupation of the premises under the periodic tenancies.

1. In their submissions, the parties referred to APlus as the Tenant or the new Tenant. We shall adopt that terminology in these reasons.

1. The applicants submitted that it is important to distinguish between the liability of the new Tenant (whether arising under the Lease or arising under some other basis) on the one hand, and the liability of the new Tenant's guarantors under cl 8 on the other hand. They contended that the Tenant's liabilities and obligations under the Transfer Deed 'are not necessarily coextensive' with the applicants' liabilities under cl 8.
2. They submitted that even though the Tenant's obligations in cl 3 extended to any period it stays in possession after the Lease ends, it did not necessarily follow that the applicants' obligations under cl 8 of the Transfer Deed also extended to guarantee the Tenant's obligations after the termination of the Lease.
3. As to cl 8.1, they submitted:

It is objectively clear that clause 8.1 of the Transfer Deed guarantees the Tenant's obligations under 'the lease'. This clause does not objectively guarantee the Tenant's obligations under any other basis of occupation of the premises.

The meaning of a guarantee is to be determined at the date that it was given and what would a reasonable business person considering or construing the guarantee would have contemplated was the scope or ambit of the guarantee of the Tenant's obligations.

Although the Transfer Deed contemplated that the Tenant might stay in possession after termination of the leases, it does not follow that the Applicants necessarily contemplated that they would be liable under the clause 8 to guarantee for the Tenant's liabilities under a new basis for occupation of the premises.

Clause 8 does not specify the duration of the guarantee because it is not necessary to do so as the duration is determined by the duration of the lease, therefore, when the leases terminated, so did the obligation under clause 8.[9]

1. Thus, the applicants submitted that 'the lease' referred to in cl 8.1 was the Lease that has been transferred by the Transfer Deed with the result that the guarantee did not, on its proper construction, extend to guaranteeing the Tenant's obligations under the periodic monthly tenancy or any other form of tenancy.
2. They submitted that the words in cl 8.1 'will pay the rent promptly and will do everything the lease requires', on their proper construction, referred only to the obligations of the Tenant under the Lease that was being transferred under each deed. They submitted that:

(a) the use of the definite article 'the' before 'rent' can only properly and commercially be applied to 'the rent' payable under the Lease that is being guaranteed and not in respect of 'any rent' that may be payable or any other obligation that may arise under any arrangement or understanding between the Tenant and the Landlord; and

(b) it is not a proper construction of cl 8.1 to construe it as if it contained two interrelated obligations: first, that the appellants guarantee that the Tenant 'will pay the rent promptly' and, secondly, that they guarantee the Tenant will 'do everything the lease requires'. They contended that a reasonable person would have understood that cl 8.1 guaranteed 'the Tenants' obligations to pay rent as provided for under the lease and to do everything the lease required'.

1. In doing so, the applicants submitted that the courts have consistently interpreted guarantees and indemnities strictly as applying to the lease that is being guaranteed and not to subsequent periodic monthly tenancies or leases or other forms of tenancy.[10] The applicants contended that their construction of cl 8.1, which strictly tied the construction of the clause to the term of the Lease, is clear and reasonable and does not contain any uncertainties as to the scope of the guaranteed obligations.
2. By contrast, they submitted that the judge's construction had the effect that payment of rent is in respect of any basis upon which the Tenant occupied the premises, irrespective of whether it was pursuant to the Lease or not. As a result, on the judge's construction, the applicants became liable for an indeterminate quantum of rent and other obligations for an indeterminate period of time once the rent and other obligations are not explicitly or directly referrable to the Lease which was assigned pursuant to the Transfer Deed.
3. As a result, the judge erred in his construction of the Transfer Deed and by failing to interpret the guarantors' obligations strictly.

1. In contrast, the respondents submitted that the judge's decision was correct. They contended that the applicants' attempt to separate the work that cl 3 and cl 8.1 have to do is wrong. Rather, the trial judge correctly found that, in accordance with the relevant principles concerning the construction of contracts, the clauses 'must be read together'.[11] They contended that the judge was correct to conclude that the requirement in cl 8.1 that the Tenant 'pay the rent promptly' could 'only mean the rent which cl 3 of the Transfer Deeds required to be paid'.[12]
2. The respondents relied upon the fact that the applicants were guaranteeing the relevant obligations imposed by the Transfer Deed. This was because the guarantee in cl 8.1 was the new and the only relevant guarantee, as the guarantee in cl 15 of each Lease had been deleted by the time of the deeds' execution. As a result, the respondents submitted:

When cl. 8 is read in conjunction with cl. 3 - as it must be so done - it is respectfully submitted that the only finding which is available is that the Applicants guaranteed the obligation of the Tenant to pay rent and do everything else required under the leases for whatever period the Tenant was in occupation of the relevant apartment. Not only where [sic] those obligations not expressed in any manner whatsoever to conclude or cease when the leases came to an end, but rather those obligations were expressly stated to continue beyond the end of the leases[.]

1. The respondents contended that the obligation to pay rent under cl 3 was dependent upon whether the Tenant stayed in possession, rather than turning on whether the rent was payable 'under the lease'. Thus, the respondents contended that, when construing the obligations of the Tenant guaranteed under cl 8.1, the legal basis of the Tenant's occupation of the premises is irrelevant for the reasons set out in [30] above.
2. The respondents submitted that the applicants were misguided by resorting to principles concerning the strict interpretation of guarantees. As the authorities appear to make clear, regard must first be had to other rules of contractual construction: it is only in circumstances where, having exhaustively applied those rules, the interpretation of a clause remains ambiguous, that the principle of strict interpretation of guarantees finds proper application.[13]
3. In any event, the respondents sought to distinguish the present circumstances from the authorities on which the applicants relied.[14] They submitted that those cases concerned clauses in leases that were expressly confined to a guarantee of performance by the lessee of the terms of the lease itself. In contrast, they submitted that, in this case

the parties expressly agreed in the Transfer Deeds that the Tenant's obligations did extend beyond the end of 'the lease', and applied for any period during which the Tenant remained in occupation of the relevant premises. Following from that finding (being the only finding which was open on the plain reading of the Transfer Deeds), the only commercial construction of cl. 8 of the Transfer Deeds was that the Applicants agreed to guarantee the Tenant's obligations as expressed in the Transfer Deeds. It is the extension of those obligations which the trial Judge correctly found the Applicants agreed to guarantee ...

1. The principles governing the construction of a commercial contract are well‑established. They are, relevantly, as follows:

(a) The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to the text, context and purpose of the contract. The context includes the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract.

(b) The determination of the meaning of the terms of a commercial contract is an objective exercise. It is necessary to ask what a reasonable businessperson in the position of the parties would have understood the terms to mean. That will require consideration of the language of the contract, the circumstances addressed by the contract and the commercial purpose to be secured by the contract.[15] Relatedly, a court will generally approach the task of construing a commercial contract on the assumption 'that the parties intended to produce a commercial result'.[16] A commercial contract should be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'.[17]

1. In addition, there are particular principles concerning the construction of guarantees. As the High Court observed in Bofinger v Kingsway Group Ltd, the settled principle in Australia concerning the interpretation of contracts of guarantee is that a doubt as to the construction of a guarantee provision 'should be resolved in favour of the surety or indemnifier'.[18] The Court said that it is 'implicit in this that the doubt may arise not only from the uncertain meaning of a particular expression but from its apparent width of possible application'.[19]
2. In doing so, the Court in Bofinger relied upon the earlier joint reasons in Andar Transport Pty Ltd v Brambles Ltd,[20] which had in turn adopted the following passage of the joint reasons in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd that:[21]

At law, as in equity, the traditional view is that the liability of the surety is strictissimi juris and that ambiguous contractual provisions should be construed in favour of the surety. The doctrine of strictissimi juris provides a counterpoise to the law's preference for a construction that reads a provision otherwise than as a condition. A doubt as to the status of a provision in a guarantee should therefore be resolved in favour of the surety ...[22]

1. The comments in Andar and Ankar were limited to cases where there were ambiguous contractual provisions. But it remains necessary to construe the contract, and it may be that, properly construed, there is no ambiguity to which the principles set out in Bofinger, Andar and Ankar fall to be applied.

1. In accordance with the principles set out above, it is necessary to interpret the words in cl 8.1 in light of the Transfer Deed as a whole and in light of the context and purpose of that deed.
2. As to the context, the Lease of each of the premises is relevant context for the Transfer Deed and is important for understanding its effect. This is in circumstances where the parties to the Transfer Deed are presumed to be aware of the terms of the Lease to which the Transfer Deed relates. As set out above, the terms of the Lease included the rent clause and the overholding provisions. However, as the respondents emphasised, the guarantee obligation in cl 15 of each Lease was deleted by the time each Transfer Deed was executed. All these matters were objective background facts.
3. As to the purpose of the Transfer Deed, it is clear that its primary purpose was to effect the transfer or assignment of the Lease from Beaumont as the old Tenant to APlus as the new Tenant. That is evident from the title of the Transfer Deed and its recitals.
4. There were other subsidiary but important purposes of the Transfer Deed related to the primary purpose, namely (a) to protect the position of the old Tenant in respect of breaches of the Lease by the new Tenant after the Transfer Date;[23] (b) to limit the obligations of the old Tenant and the old Tenant's guarantors only to obligations under the Lease before it ended;[24] and (c) to provide for a new guarantee from the new Tenant's guarantor in respect of the new Tenant's obligations.[25]
5. Turning to the text of the Transfer Deed, the parties placed much focus of the terms of cl 8.1. However, it is necessary to consider the meaning of the guarantee in cl 8 having regard to the other provisions of the Transfer Deed, in particular the obligations imposed on APlus as the new Tenant.
6. Those obligations are primarily contained in cl 3. However, cl 3 must be read in light of cl 1 which also relates to the obligations imposed on APlus as the new Tenant. Clause 1.1 provides that the 'old Tenant transfers the lease to the new Tenant with all options' and that the new Tenant 'will hold the lease from the transfer date'. The reference to the 'lease' in this clause can only be a reference to the Lease then in existence for each apartment. This clause confirms the primary purpose of the Transfer Deed set out at [40] above.
7. Clause 3 then provides:

3. ASSIGNEE ACCEPTS OBLIGATIONS

The new Tenant must pay the Rent and do everything else required by the lease for the remainder of the lease and during any period it stays in possession after it ends.

1. As set out above, the parties submitted different interpretations of cl 3. In summary, the respondents submitted that cl 3, in effect, contained two separate obligations: first, the obligation to 'pay Rent ... for the remainder of the lease and during any period it stays in possession after it ends'; and second, 'and do everything else required by the Lease for the remainder of the lease and during any period it stays in possession after it ends'. They submitted that the obligation to pay Rent was tethered to the new Tenant remaining in possession and was not tethered to Rent 'required by [or under] the lease'.
2. By contrast, the applicants submitted that there was, in truth, one obligation: to 'pay the Rent and do everything else required by the lease for the remainder of the lease and during any period it stays in possession after it ends'. Most relevantly, they submitted that the obligation to pay Rent was tethered to the Rent 'required by [or under] the lease'. Further, the applicants submitted that, to the extent that there is an ambiguity in the text of cl 3 by reason of these differences in construction, it is necessary to have regard to not only the purpose of the Transfer Deed and other relevant provisions of the Transfer Deed to resolve that ambiguity, but also the strict construction principle.
3. Having regard to the primary purpose of the Transfer Deed and the language of that deed, in particular cl 1.1 and the heading to cl 3 ('Assignee accepts obligations'),[26] we consider that the correct construction is that the reference to 'pay the Rent' in cl 3 is tethered to the rent required to be paid by or under the Lease. That is to say, we consider that cl 3 provides the new Tenant must:

(a) pay the Rent ... required by the lease for the remainder of the lease and during any period it stays in possession after it ends; and

(b) do everything else required by the lease for the remainder of the lease and during any period it stays in possession after it ends.

1. Thus, the obligation under cl 3 would apply to the rent payable under the overholding provisions in the Lease for any period the new Tenant stayed in possession after the Lease ends. However, cl 3 does not extend to the rent payable if the Tenant remains in possession after the Lease ends under a new agreement. In our view, that produces a practical and commercially workable outcome in the context of the Transfer Deed as a whole. Self‑evidently, any new legal arrangement under which the new Tenant might remain in possession would not involve the old Tenant and its terms would not depend on the existing Lease. It would be incongruous for the Transfer Deed, which is primarily concerned with the transfer of existing obligations, to impose an obligation to pay rent under a possible future arrangement which would itself inevitably impose a fresh obligation on the new Tenant to pay rent.
2. We do not accept the respondents' submission that the words of cl 3 create two separate obligations - ie first, to pay Rent; and second, to do everything else required by the Lease. Rather, we consider that the clause imposes one composite obligation to do all things required by the Lease while emphasising the importance of paying the Rent.
3. Further, we do not consider that the specific references in cls 5 and 6, which provide that the obligations on the old Tenant and the old Tenant's guarantor 'do not continue into any period of overholding ... nor into any new renewed term', affect the construction of the obligations of cl 3. Rather, cl 3 adopts different language which makes it sufficiently clear that the obligations of the Tenant are confined to obligations required by or under the Lease.
4. Finally, we note that this construction is consistent with the approach taken in the cases relied upon by the applicants, such as Chan, White and Cao.[27] These cases are authority for the proposition that the obligation of a tenant under a lease (including the obligation to pay rent) will not ordinarily, without clear words to the contrary, be interpreted to extend to obligations arising from a different legal basis, such as a subsequent agreement for lease between the parties. In those cases, a guarantee directed to the performance of the original lease was held not to extend to performance of the subsequent lease.
5. It follows that we consider that the respondents' submissions are inconsistent with the words of cl 3 when read in light of the primary purpose and other relevant provisions of the Transfer Deed.
6. We now turn to cl 8 in light of this construction of cl 3. Clause 8, which is set out above, relevantly provides:

8. GUARANTEE AND INDEMNITY

The new Tenant's guarantor -

8.1 Guarantees to the landlord and to the old Tenant that the new Tenant will pay the rent promptly and will do everything the lease requires.

1. Having regard to the primary purpose of the Transfer Deed and the language of that deed, we have also concluded that cl 8 guarantees the obligations of the Tenant under cl 3. This is because we consider that the phrase 'will pay the rent promptly and will do everything the Lease requires' in cl 8.1 refers to the obligations under cl 3 as properly construed in [47] above.
2. In some respects, cl 8.1 mirrors cl 3. For example, cl 8.1 uses similar language to cl 3 in describing what is being guaranteed, namely the obligation to 'pay the rent promptly and ... do everything the lease requires'. But there are differences. The first part of the clause relating to rent uses lower case 'r' for rent and includes the word 'promptly'. The second part relating to other obligations under the lease uses different words and does not include the word 'else' after the 'everything'.
3. However, in our view, there is nothing in these differences or in the text of cl 8.1 more generally which would lead a reasonable person to conclude other than that the obligations to be guaranteed are the obligations on the new Tenant set out in cl 1.1 and more particularly in cl 3. For the reasons given, those obligations are only the obligations under the Lease.
4. Further, there is nothing in the other provisions of cl 8 which is inconsistent with this construction. In particular, we do not consider that the reference to the guarantee being a 'continuing guarantee' in cl 8.2 alters our construction that cl 8.1 only guarantees the obligations of the Tenant which are set out in cl 3.
5. Thus, we consider it is clear that the obligations to be guaranteed under cl 8.1 were the obligations imposed under the Lease under cl 3.
6. This construction results in a practical and commercially workable outcome in the context of guarantees so that the guarantee is not, in the absence of clear words, unlimited and will not apply pursuant to any new agreement or agreements between a principal debtor and creditor, in this case the Tenant and the Landlord.
7. As a result of the conclusion we have reached, it has not been necessary to rely upon the principles of strict construction of guarantees upon which the applicants relied. Our interpretation of cl 8.1 is based on the words used in that clause, along with the words used in other clauses of the Transfer Deed as read in light of both its context and purpose. However, had there been any ambiguity, the principles of strict construction would have compelled the same conclusion, namely that the guarantee did not extend to rent payable other than by reason of the Lease.
8. For these reasons, we would grant leave in respect of each proposed ground of appeal and allow the appeal.

• SINHA SUPRIYO (AS TRUSTEE FOR BANERJEE FAMILY TRUST)

• JENOX PTY LTD (ACN 164 669 087) (T/AS THE OXLEY FAMILY TRUST)

• WEST FAMILY FUND ENTERPRISES PTY LTD (ACN 165 212 984)

[1] APlus Capital Pty Ltd v Kontomichalos [2024] VSC 546 (Ginnane J) ('Reasons').

[2] In at least one of the transfer deeds, this cl 8.3 was struck through.

[3] APlus also sought leave to appeal in relation to the making of the aggregate order by the Tribunal; the judge upheld APlus's appeal: Reasons, [121]-[123].

[7] 'Strictissimi juris' is a reference to the principle that a provision is to be interpreted 'in the strictest manner' and, as set out below, has some relevance in interpreting guarantees.

[8] Based on the principle that the liability of a guarantor or surety is strictissimi juris.

[10] Citing Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63 ('Chan'); White v Cariste Pty Ltd [2004] NSWCA 460 ('White'); Cao v Baccello Pty Ltd [2020] WASCA 82 ('Cao').

[13] Citing Gardiner v Agricultural & Rural Finance Pty Ltd [2007] NSWCA 235, [18] (Spigelman CJ); Coghlan v S H Lock (Australia) Ltd (1987) 8 NSWLR 88, 92 (Lord Oliver of Aylmerton); Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2018] QCA 174.

[14] See above fn 10.

[15] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116-18, [46]-‍[51] (French CJ, Nettle and Gordon JJ); [2015] HCA 37 ('Mount Bruce Mining'); Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544, 551, [16]-[17] (Kiefel, Bell and Gordon JJ); [2017] HCA 12 ('Ecosse'); Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 (Gibbs J); [1973] HCA 36; Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522, 529 [15]-[16] (Gleeson CJ, McHugh, Gummow and Kirby JJ); [2005] HCA 17.

[16] Ecosse [2017] HCA 12; (2017) 261 CLR 544, 551, [17] (Kiefel, Bell and Gordon JJ); [2017] HCA 12.

[17] Mount Bruce Mining (2015) 256 CLR 104, 118, [51] (French CJ, Nettle and Gordon JJ); [2015] HCA 37.

[18] (2009) 239 CLR 269, 292 [53] (Gummow, Hayne, Heydon, Kiefel and Bell JJ); [2009] HCA 44 ('Bofinger').

[19] Bofinger (2009) 239 CLR 269, 292 [53] (Gummow, Hayne, Heydon, Kiefel and Bell JJ); [2009] HCA 44. See also Cao [2020] WASCA 82, [54] (Murphy, Beech and Vaughan JJA).

[20] [2004] HCA 28; (2004) 217 CLR 424, 433-7 [17]-[23] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ); [2004] HCA 28 ('Andar').

[21] (1987) 162 CLR 549; [1987] HCA 15 ('Ankar').

[22] [1987] HCA 15; (1987) 162 CLR 549, 561 (Mason ACJ, Wilson, Brennan and Dawson JJ); [1987] HCA 15.

[23] Evident from the indemnity given by APlus to Beaumont in cl 4 of the Transfer Deed.

[24] Evident from cls 5 and 6 of the Transfer Deed.

[25] Evident from cl 8 of the Transfer Deed.

[27] Chan [1989] HCA 63; (1989) 168 CLR 242, 256 (Mason CJ, Brennan, Deane and McHugh JJ); [1989] HCA 63 (concerning an implied tenancy at common law); Cao [2020] WASCA 82, [79]-[80] (Murphy, Beech and Vaughan JJA) (concerning a fresh lease agreement between the parties); White [2004] NSWCA 460, [40]-[41], [46] (Hodgson JA, Ipp JA agreeing at [49], Bryson JA agreeing at [50]) (concerning a fresh lease agreement between the parties). We are conscious that these cases concerned a guarantee of the relevant obligations under the lease, rather than a guarantee under a transfer of a lease. But that does not mean the cases are not of assistance.