Challenger Managed Investments Limited v Milan Samardic & Stoyan Kiceec [2010] NSWSC 908

Challenger Managed Investments Limited v Milan Samardic & Stoyan Kiceec [2010] NSWSC 908

The defendants knowingly executed the Deed of Guarantee and Indemnity after receiving independent legal advice, Forster borrowed the funds and defaulted, the mortgaged properties were sold with a remaining certified debt of $3,743,270.99, and no evidence contradicted the lender's certificate. Because neither defendant remedied the default or maintained any real defence, Challenger was entitled to judgment against each defendant for the certified amount. Challenger was also entitled to indemnity costs because the Deed of Loan and Deed of Guarantee and Indemnity provided for reimbursement or indemnity for legal costs and expenses arising from default.

Jurisdiction
Australia
Judgment Date
16 August 2010
Procedural Posture
Claim for Monetary Judgment Against Guarantors Under a Deed of Guarantee and Indemnity / Final Hearing; Ex Tempore Principal Judgment
Outcome
Judgment for the plaintiff creditor against both defendant guarantors; judgment for the plaintiff/cross-defendant on the second defendant's amended cross-claim; defendants to pay the plaintiff's costs on an indemnity basis.
Legal Topics
['personal Guarantees on Commercial Loan' 'company Debts and Mortgages' 'default in Payment of Interest and Repayment of Loan' 'no Appearance by Guarantors' 'civil Procedure Act 2005, S 56' 'indemnity Costs Based on Contractual Entitlement']
['guarantees and Indemnities' 'practice and Procedure' 'costs'] ['personal Guarantees on Commercial Loan' 'company Debts and Mortgages' 'default in Payment of Interest and Repayment of Loan' 'no Appearance by Guarantors' 'civil Procedure Act 2005, S 56' 'indemnity Costs Based on Contractual Entitlement']

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Procedural Posture

Claim for Monetary Judgment Against Guarantors Under a Deed of Guarantee and Indemnity / Final Hearing; Ex Tempore Principal Judgment

Legal Issues

  1. 1 ["Whether the defendants were liable as guarantors for Forster Development Group Pty Limited's default under the Deed of Loan." "Whether the lender's certificate established the amount owing under the Deed of Guarantee and Indemnity." 'Whether the plaintiff should receive indemnity costs based on contractual provisions.' "Whether the defendants' conduct and filed defences identified any real issue for determination having regard to s 56 of the Civil Procedure Act 2005."]

Ratio Decidendi

The defendants knowingly executed the Deed of Guarantee and Indemnity after receiving independent legal advice, Forster borrowed the funds and defaulted, the mortgaged properties were sold with a remaining certified debt of $3,743,270.99, and no evidence contradicted the lender's certificate. Because neither defendant remedied the default or maintained any real defence, Challenger was entitled to judgment against each defendant for the certified amount. Challenger was also entitled to indemnity costs because the Deed of Loan and Deed of Guarantee and Indemnity provided for reimbursement or indemnity for legal costs and expenses arising from default.

Court Disposition

Judgment for the plaintiff creditor against both defendant guarantors; judgment for the plaintiff/cross-defendant on the second defendant's amended cross-claim; defendants to pay the plaintiff's costs on an indemnity basis.

Orders

  • ['Judgment for the plaintiff against the first defendant in the sum of $3,743,270.99.' 'Judgment for the plaintiff against the second defendant in the sum of $3,743,270.99.' 'Judgment for the plaintiff/cross-defendant on the amended cross-claim filed by the second defendant/cross-claimant on 6 May 2010.' "Defendants...