Adisan Pty Ltd v Irwin [2015] NSWCA 217

Adisan Pty Ltd v Irwin [2015] NSWCA 217

The Guarantee did not extend to cover the amended facility because the respondent was not provided with all terms of the 'new loan contract', including the capping arrangement of a co-guarantor's liability; hence, written acceptance was not valid for the actual amended contract and the respondent was not liable under it.

Parties
Appellant: Adisan Pty Ltd; Respondent: Craig Irwin
Jurisdiction
Australia
Judgment Date
30 July 2015
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
Guarantee and Indemnity, Interpretation of Guarantee, Deed of Variation, Misleading or Deceptive Conduct, Section 87 Trade Practices Act, Capping of Co Guarantor Liability
Contract Law Australian Consumer Law Guarantee and Indemnity Interpretation of Guarantee Deed of Variation Misleading or Deceptive Conduct Section 87 Trade Practices Act Capping of Co Guarantor Liability

Case Brief

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Parties

Adisan Pty Ltd

Appellant

Craig Irwin

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether respondent remained liable as guarantor for moneys not paid in accordance with the original loan facility
  2. 2 Whether respondent's execution of the Deed of Variation was effective to extend the guarantee to cover moneys due under the Loan Contract as varied
  3. 3 Whether appellant's conduct was misleading or deceptive entitling respondent to relief under section 87(1) of the Trade Practices Act

Ratio Decidendi

The Guarantee did not extend to cover the amended facility because the respondent was not provided with all terms of the 'new loan contract', including the capping arrangement of a co-guarantor's liability; hence, written acceptance was not valid for the actual amended contract and the respondent was not liable under it.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Set aside order 3 made on 1 August 2014