READ THE SMALL PRINT
Tuning Fork (Pty) Ltd t/a After Market Products.
Kilburn Auto breached the dealership agreement with Tuning Fork for products bought under the Yamaha Distributors division. As the new owner of the Yamaha Distributors division, Tuning Fork launched an application for payment of the outstanding amount, ancillary relief, and costs jointly and severally from Kilburn Auto as the principal debtor and Ian Kilburn as the surety.
In the court a quo, Kilburn Auto contended that its indebtedness relating to the purchase of the products under the AMP division had been discharged. The court, however, found in favour of Tuning Fork’s interpretation that the deed of suretyship had been widely worded and thus covered the purchase of any product under any of the entities.
Tuning Fork was the creditor and therefore had a claim against Ian Kilburn in his capacity as surety.
The Supreme Court of Appeal was called on to decide whether Tuning Fork, on a proper construction of the deed, had a contractual right to recover against Ian Kilburn in his capacity as a surety, the indebtedness that arose from the credit purchases from Tuning Fork’s Yamaha Distributors division. Tuning Fork made the following contentions: