Alceon Group Pty Ltd v Rose [2015] NSWSC 868

Alceon Group Pty Ltd v Rose [2015] NSWSC 868

Alceon's misleading and deceptive conduct case failed because the negotiations showed that further matters emerged, the loan was increasingly seen as high risk, and Alceon's late requirement for personal guarantees and mortgage security reflected the realities of the transaction rather than misleading conduct. Peter Rose's other defences failed because Quadwest's assets had been fully realised, no evidence or argument supported the alternative security defence, and he was an experienced businessman who knew Quadwest's financial position and the consequences of the guarantee and mortgage. As to Mrs Rose, she did not understand the transaction, was a volunteer, reposed trust and confidence...

Jurisdiction
Australia
Judgment Date
03 July 2015
Procedural Posture
Common Law Proceeding to Enforce Personal Guarantees and Rights Under a Mortgage, With Defences and Cross Claims / Principal Judgment After Hearing; Parties Directed to Bring in Short Minutes of Order
Outcome
Alceon's claim against Peter Rose succeeds; Alceon's claim against Mrs Rose fails; Peter Rose's defences, including under the Contracts Review Act 1980 (NSW), fail; the Deed of Guarantee and mortgage are not to be enforced against Mrs Rose.
Legal Topics
['guarantee and Indemnity' 'mortgage Enforcement' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'unjust Contracts' 'independent Legal Advice for Third Party Guarantor' 'conflict of Interest']
['contract Law' 'equity' 'consumer Law' 'real Property' 'civil Law'] ['guarantee and Indemnity' 'mortgage Enforcement' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'unjust Contracts' 'independent Legal Advice for Third Party Guarantor' 'conflict of Interest']

Case Brief

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Procedural Posture

Common Law Proceeding to Enforce Personal Guarantees and Rights Under a Mortgage, With Defences and Cross Claims / Principal Judgment After Hearing; Parties Directed to Bring in Short Minutes of Order

Legal Issues

  1. 1 ["Whether Alceon was entitled to enforce personal guarantees and a mortgage over the Clontarf property following Quadwest's default" 'Whether Alceon engaged in misleading and deceptive conduct by changing its position and requiring personal guarantees and mortgage security late in negotiations' 'Whether the Deed of Guarantee and mortgage were unenforceable against Mrs Rose under the principles in Yerkey v Jones and Garcia v National Australia Bank Ltd' 'Whether the Deed of Guarantee and mortgage were unjust contracts under the Contracts Review Act 1980 (NSW)' 'Whether Peter Rose had established any defence to enforcement, including under the Contracts Review Act 1980 (NSW)']

Ratio Decidendi

Alceon's misleading and deceptive conduct case failed because the negotiations showed that further matters emerged, the loan was increasingly seen as high risk, and Alceon's late requirement for personal guarantees and mortgage security reflected the realities of the transaction rather than misleading conduct. Peter Rose's other defences failed because Quadwest's assets had been fully realised, no evidence or argument supported the alternative security defence, and he was an experienced businessman who knew Quadwest's financial position and the consequences of the guarantee and mortgage. As to Mrs Rose, she did not understand the transaction, was a volunteer, reposed trust and confidence...

Court Disposition

Alceon's claim against Peter Rose succeeds; Alceon's claim against Mrs Rose fails; Peter Rose's defences, including under the Contracts Review Act 1980 (NSW), fail; the Deed of Guarantee and mortgage are not to be enforced against Mrs Rose.

Orders

  • ['The parties to bring in short minutes of order to reflect the conclusions in this judgment']