ABSTRACT
Ltd (1997) 55 Con LR 1; OTV Birwelco Ltd v Technical & General Guarantee Co Ltd (2002) 84 Con LR 117 at 153 [115], per HHJ Thornton QC. 56 Oval (717) Ltd v Aegon Insurance Co (UK) Ltd (1997) 85 BLR 97; Odebrecht Oil & Gas Services Ltd v North Sea Production Co Ltd [1999] ADRLJ 312 [TCC, Dyson J]; OTV Birwelco Ltd v Technical & General Guarantee Co Ltd (2002) 84 Con LR 117 at 150 [105], per HHJ Thornton QC. See also Clydebank District Water Trustees v Fidelity & Deposit Company of Maryland 1915 SC 362. 57 See, eg, Ferrara v National Surety Co (1917) 11 WWR 719 at 728, per Idington J [Sup Ct Canada]: “[W]here, as here, the provision of the surety’s bond requiring notice is explicit and its observance is expressly made a condition precedent to the obligee’s right of recovery the question of materiality does not arise. The parties by their contract have chosen to stipulate that non-observance of the conditions in any respect whether material or not shall preclude recovery under it.” 58 Paddington Churches Housing Association v Technical & General Guarantee Co Ltd [1999] BLR 244 at 247 [18], per HHJ Bowsher QC. 59 National House-Building Council v Fraser [1983] 1 All ER 1090. 60 Where a director of a company signs a guarantee in his or her capacity as “director”, it will usually be the case that the director enters into the guarantee in a personal capacity, and not as representative of the company in question: see, eg, Omiros Pty Ltd v PM Developments Pty Ltd [2007] FCA 1501. 61 Guarantees given by professional guarantors are usually secured by a counter-guarantee provided by the person whose obligations are secured, or a related entity. 62 See, eg, Roberts v Brett (1865) 11 HLC 337 [11 ER 1363]. In the US, contractors involved in federal government construction projects may be required to provide a bond from a professional surety, for the protection of all persons providing labour and materials in the prosecution of the work: the Miller Act 40 USC §§270a-270f. 63 Smith v Rudhall (1862) 3 F&F 143 [176 ER 64].
