The assignment of guarantees: A review of Hutchens v Deauville Investments Pty Ltd

Abstract

In Hutchens v Deauville Investments Pty Ltd, the High Court of Australia held that the assignee of the benefit of a guarantee could not enforce that guarantee when title to the underlying credit contract remained with the assignor. In so holding the court supported a view that the two choses in action represented by the credit contract and guarantee could not be separately assigned as the indebtedness of the debtor and guarantor was for the same debt. To allow such assignment would result in two debts being created from one debt. This paper investigates that proposition.