Email correspondence can give rise to waiver of facility agreement (Little v Olympian Homes Ltd)

Article summary

Banking & Finance analysis: Little and another v Olympian Homes Ltd(2024) relates to two applications to set aside statutory demands arising out of personal guarantees. The personal guarantees were given by the applicants in respect of a facility agreement. The principal amount due was paid late, and the lender served statutory demands in respect of default interest payable pursuant to the facility agreement. The applicants argued the lender had waived its entitlement to contractual interest by way of email correspondence (contractual waiver) or, alternatively, by virtue of its conduct (waiver estoppel). The court was clear the applicants were unable to rely on any argument there had been an oral waiver of the terms of the facility agreement, given the facility agreement explicitly provided any contractual waiver was to be made in writing. The court also rejected the applicants’ argument certain email correspondence amounted to a written waiver of the contract, given the emails on which...