Cooper v Kinsella [2011] NSWCA 45

The lender agreed to accept payment of his loan through scheduled deliveries of stock in trade by the borrower. The directors of the borrower guaranteed its loan obligations. An order placed was not satisfied and the borrower was wound up. The lender sued the guarantors for the full balance of the loan.

The trial judge found that the lender was required to place an order to trigger the scheduled repayments and the fact that a single order was not satisfied did not trigger repayment of the full balance. The lender appealed.

The appeal court made the following findings:

Breach of Agreement

The court found the borrower in breach in each month (from the date the order was not filled) when it failed to repay the specified amount of the loan. The lender did not have to place an order to trigger the borrower’s obligation to repay because the borrower intimated that compliance would be futile.


The complete lack of response to the order was a clear repudiation by the borrower of the loan agreement.


The lender accepted the repudiation of the agreement in its letter of demand by its solicitors.

The appeal court found for the lender and held the guarantors liable for as much as the borrower is liable, namely the full balance.

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