Overview
There can be numerous modifications made to the terms of a
commercial finance facility over its life. Sometimes these
are contained in a short amendment document, where only the
particular changes are recorded. There may be a number of
these over time and, in more complex and long-running transactions,
it is common at some point for the original facility agreement with
its changes to be "amended and restated" – in other
words, consolidated and contained in a single document. That
is as much for ease of reading as anything.
In the decision of the Court of Appeal of Western Australia in
Australia and New Zealand Banking Group Limited v.
Manasseh (delivered on 10 March 2016), the legal nature and
effect of an amendment and restatement was the central issue.
The case involved a claim by the Bank under a guarantee which had
been granted when the facility was first provided. The result was a
victory for the guarantor who successfully argued that
