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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:

Pic­ture: iS­TOCK

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