Capital Finance Australia Limited v Amargianitakis [2011] NSWSC 719

Capital Finance Australia Limited v Amargianitakis [2011] NSWSC 719

The plaintiff established the facility agreements, guarantees, advances, borrower defaults, demands, and the certified indebtedness, while the defendants adduced no evidence to support the factual allegations underlying their defences and cross-claim. The asserted duties were generally not part of the principal and surety relationship and were inconsistent with the guarantee documents. The plaintiff was therefore entitled to judgment for the certified sum and contractual solicitor and client costs.

Jurisdiction
Australia
Judgment Date
11 July 2011
Procedural Posture
Enforcement of Guarantees and Indemnities for Two Loan Facilities / Principal Judgment Ex Tempore
Outcome
Judgment for plaintiff with costs. Judgment for cross-defendant with costs.
Legal Topics
['enforcement of Guarantee' 'default Under Loan Facility Agreements' 'dobbs Certificate' 'duties Owed to Guarantors' 'cross Claim' 'solicitor and Client Costs' 'judgment Interest']
['guarantee and Indemnity' 'civil Procedure' 'costs'] ['enforcement of Guarantee' 'default Under Loan Facility Agreements' 'dobbs Certificate' 'duties Owed to Guarantors' 'cross Claim' 'solicitor and Client Costs' 'judgment Interest']

Case Brief

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Procedural Posture

Enforcement of Guarantees and Indemnities for Two Loan Facilities / Principal Judgment Ex Tempore

Legal Issues

  1. 1 ['Whether the plaintiff proved the advances, borrower defaults, demands under the guarantees, and indebtedness of the defendants as guarantors.' 'Whether the defendants established defences or a cross-claim based on alleged duties of the plaintiff, including an alleged duty to sell mortgaged properties earlier.' 'Whether costs should be ordered on an indemnity basis or on the solicitor and client basis provided by the guarantee documents.']

Ratio Decidendi

The plaintiff established the facility agreements, guarantees, advances, borrower defaults, demands, and the certified indebtedness, while the defendants adduced no evidence to support the factual allegations underlying their defences and cross-claim. The asserted duties were generally not part of the principal and surety relationship and were inconsistent with the guarantee documents. The plaintiff was therefore entitled to judgment for the certified sum and contractual solicitor and client costs.

Court Disposition

Judgment for plaintiff with costs. Judgment for cross-defendant with costs.

Orders

  • ['I direct entry of judgment for the plaintiff against each of the defendants in the sum of $30,585,452.17.' 'I direct that interest accrue on the said judgment debt in accordance with s 101 of the Civil Procedure Act 2005 (NSW).' "I order the defendants to pay the plaintiff's costs of the proceedings (including the...