Sleaford v Worthing & Saunders [2020] NSWDC 231

Sleaford v Worthing & Saunders [2020] NSWDC 231

The 2016 Deed remained on foot, varied only so that the $140,000 was advanced in two instalments, and its guarantee and indemnity bound the first defendant for $140,000. The 2018 Deed documented the additional $10,000 and did not by its terms extend the guarantee to that amount. The first defendant nevertheless made unchallenged representations that repayment would be personally guaranteed, on which the plaintiff relied, so he was liable for the remaining $10,000 under s 18 of the Australian Consumer Law. The second defendant did not objectively bind himself to the guarantee because he did not sign the guarantee provision, his other signatures were in a company capacity, and the evidence...

Jurisdiction
Australia
Judgment Date
22 May 2020
Procedural Posture
Civil Claim for Monies Advanced Under Deeds of Loan, Guarantee and Indemnity, and Alternatively Under the Australian Consumer Law / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the first defendant; judgment for the second defendant against the plaintiff.
Legal Topics
['deeds of Loan' 'personal Guarantee and Indemnity' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'repudiation' 'variation of Contract' 'objective Intention to Be Legally Bound']
['contract Law' 'guarantee and Indemnity' 'consumer Law'] ['deeds of Loan' 'personal Guarantee and Indemnity' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'repudiation' 'variation of Contract' 'objective Intention to Be Legally Bound']

Case Brief

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Procedural Posture

Civil Claim for Monies Advanced Under Deeds of Loan, Guarantee and Indemnity, and Alternatively Under the Australian Consumer Law / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the 2016 guarantee was operative and whether it guaranteed $140,000, $150,000 or $100,000.' 'Whether the second defendant was liable under the 2016 guarantee despite not signing the guarantee and indemnity provision.' 'Whether the $50,000 advanced in 2018 under the 2018 Deed was guaranteed.' 'Whether one or both defendants engaged in misleading or deceptive conduct or unconscionable conduct under the Australian Consumer Law.']

Ratio Decidendi

The 2016 Deed remained on foot, varied only so that the $140,000 was advanced in two instalments, and its guarantee and indemnity bound the first defendant for $140,000. The 2018 Deed documented the additional $10,000 and did not by its terms extend the guarantee to that amount. The first defendant nevertheless made unchallenged representations that repayment would be personally guaranteed, on which the plaintiff relied, so he was liable for the remaining $10,000 under s 18 of the Australian Consumer Law. The second defendant did not objectively bind himself to the guarantee because he did not sign the guarantee provision, his other signatures were in a company capacity, and the evidence...

Court Disposition

Judgment for the plaintiff against the first defendant; judgment for the second defendant against the plaintiff.

Orders

  • ['Verdict and judgment for the plaintiff against the first defendant in the sum of $150,000 together with interest on the outstanding amount of $140,000 at the 5% flat rate provided for in the 2016 Deed and as to the balance of $10,000 in accordance with the Civil Procedure Act.' 'Judgment for the second defendant...