Westlawn Finance Limited v Tagg [2018] NSWSC 1491

Westlawn Finance Limited v Tagg [2018] NSWSC 1491

Mrs Tagg's liability as guarantor and mortgagor was not discharged by the release of Mr Tagg, as she expressly consented to the release by executing the Deed of Release and the guarantee provided that her obligations were primary and not affected by the release of co-guarantors. Further, her guarantee and mortgage were not unjust: she was capable of understanding the transactions, was given at least some independent advice, and received substantial benefit from refinancing. Westlawn's claims against Mr Tagg (misleading conduct, inducement, conspiracy) failed due to lack of evidence of necessary knowledge, intent, and causal loss.

Jurisdiction
Australia
Judgment Date
08 October 2018
Procedural Posture
Principal Judgment / Post Hearing Decision (judgment)
Outcome
Judgment for plaintiff (Westlawn) against first defendant (Mrs Tagg); cross-claim by Mrs Tagg dismissed; claims against Mr Tagg and Circles of Gold dismissed; quantum to be agreed or determined.
Legal Topics
['guarantee and Indemnity' 'discharge of Guarantor' 'contracts' 'unjust Contracts' 'misleading or Deceptive Conduct' 'torts' 'inducement of Breach of Contract' 'conspiracy to Injure' 'unconscionable Conduct']
['equity' 'commercial Law'] ['guarantee and Indemnity' 'discharge of Guarantor' 'contracts' 'unjust Contracts' 'misleading or Deceptive Conduct' 'torts' 'inducement of Breach of Contract' 'conspiracy to Injure' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Principal Judgment / Post Hearing Decision (judgment)

Legal Issues

  1. 1 ['Whether the release of one co-guarantor (Mr Tagg) operated to release the other (Mrs Tagg) from liability under a guarantee and mortgage' 'Whether the guarantee and mortgage given by Mrs Tagg were unjust within the meaning of the Contracts Review Act 1980 (NSW)' 'Whether there was misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law in relation to the release of a deposit from the sale of secured property' 'Whether Mr Tagg induced a breach of contract or conspired to injure Westlawn']

Ratio Decidendi

Mrs Tagg's liability as guarantor and mortgagor was not discharged by the release of Mr Tagg, as she expressly consented to the release by executing the Deed of Release and the guarantee provided that her obligations were primary and not affected by the release of co-guarantors. Further, her guarantee and mortgage were not unjust: she was capable of understanding the transactions, was given at least some independent advice, and received substantial benefit from refinancing. Westlawn's claims against Mr Tagg (misleading conduct, inducement, conspiracy) failed due to lack of evidence of necessary knowledge, intent, and causal loss.

Court Disposition

Judgment for plaintiff (Westlawn) against first defendant (Mrs Tagg); cross-claim by Mrs Tagg dismissed; claims against Mr Tagg and Circles of Gold dismissed; quantum to be agreed or determined.

Orders

  • ['Direct that the parties bring in short minutes of order to give effect to these reasons for judgment;' "Direct that, if the parties cannot reach agreement on the form of the short minutes of order within 14 days of today's date, the matter be relisted at a time to be fixed with my Associate to deal with any...