Pyramid Building Society (In liq) v Terry

HIGH COURT OF AUSTRALIATOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJPYRAMID BUILDING SOCIETY (in liquidation) v. BRUCE MITCHELL TERRY & ANOR; M 29/96Bankruptcy(1997) 189 CLR 17625 September 1997Bankruptcy Bankruptcy—Composition under Pt X of the Bankruptcy Act 1966 (Cth)—Contingent liability under a guarantee—Whether a "provable debt" in a Pt X composition. Statutory interpretation—Relevance of statutory history and purpose. Bankruptcy Act 1966 (Cth), ss 82, 187, 198, 238, 239, 240, 243. Bankruptcy Rules (Cth), r 84. Orders ORDER 1. Appeal allowed with costs. 2. Set aside paragraph 2 of the order made by the Court of Appeal and in place thereof order that the appeal by Mr and Mrs Terry be dismissed with costs. Decision TOOHEY J I would dismiss this appeal for the reasons given by Kirby J. I have nothing to add to those reasons. GAUDRON AND GUMMOW JJ In the Supreme Court of Victoria, the appellant, Pyramid Building Society (in liquidation) ("Pyramid"), sued parties including the present respondents ("Mr and Mrs Terry") upon a guarantee of the obligations to Pyramid of Something Better Pty Ltd ("Something Better"). Something Better was controlled by interests associated with Mr and Mrs Terry. Mr Terry was a property developer. The guarantors, who included Mr and Mrs Terry, undertook to Pyramid, upon demand being made on them, to pay all moneys then owing but unpaid by Something Better to Pyramid in respect of financial accommodation provided to Something Better by Pyramid. The litigation has proceeded on the footing that, upon execution of the guarantee, Mr...