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First appellant’s unpleaded unilateral mistake defence rejected; second appellant, as indemnity surety, not liable until creditor exhausts remedies against debtor.
Contract – dissolution agreement – valuation of finance – alleged unilateral mistake not pleaded at trial; inadmissible to advance new primary defence at trial without amendment. Evidence – credibility and resolution of mutually destructive versions – magistrate’s finding upheld where respondent’s evidence was cogent and appellant’s account inconsistent. Suretyship – indemnity surety – surety liable only for shortfall after creditor exhausts remedies against principal debtor; premature action against surety dismissed.
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