ANZ Banking Group Limited v Tiricovski [2012] NSWSC 1304

ANZ Banking Group Limited v Tiricovski [2012] NSWSC 1304

The 2008 cross-guarantee by Frenmast was not enforceable because it was not validly executed or authorised and could not be relied on by ANZ, as there was no evidence ANZ dealt with Frenmast in the relevant sense. Vlado's guarantee did not extend to obligations purportedly arising from that invalid 2008 guarantee. ANZ could not rely on statutory assumptions since it did not deal with Frenmast regarding the new instrument. Additionally, Vlado could not invoke the Contracts Review Act but succeeded in establishing unconscionability as ANZ failed in its duty of inquiry and to disclose the effect of the substituted guarantee, and thus ANZ could not enforce Vlado’s guarantee in relation to the...

Jurisdiction
Australia
Judgment Date
26 October 2012
Procedural Posture
Principal Judgment / Judgment
Outcome
Judgment for the third and fifth defendants (Vlado Tiricovski and Frenmast Pty Limited)
Legal Topics
['guarantees' 'cross Guarantees' 'director Liability' 'ostensible Authority' 'indoor Management Rule' 'contracts Review Act 1980' 'unconscionable Conduct']
['contracts' 'banking and Finance' 'company Law'] ['guarantees' 'cross Guarantees' 'director Liability' 'ostensible Authority' 'indoor Management Rule' 'contracts Review Act 1980' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Principal Judgment / Judgment

Legal Issues

  1. 1 ['Whether the 2001 and 2008 guarantees were valid and enforceable against Frenmast and Vlado Tiricovski' 'Whether the 2008 guarantee was executed or authorised by Frenmast' 'Whether the ANZ Bank could rely on statutory assumptions under ss 127, 128, 129 Corporations Act for the 2008 cross-guarantee' "Whether Vlado's guarantee extended to liabilities arising under the 2008 cross-guarantee" "Whether the bank's reliance on guarantees was unconscionable under the Contracts Review Act 1980"]

Ratio Decidendi

The 2008 cross-guarantee by Frenmast was not enforceable because it was not validly executed or authorised and could not be relied on by ANZ, as there was no evidence ANZ dealt with Frenmast in the relevant sense. Vlado's guarantee did not extend to obligations purportedly arising from that invalid 2008 guarantee. ANZ could not rely on statutory assumptions since it did not deal with Frenmast regarding the new instrument. Additionally, Vlado could not invoke the Contracts Review Act but succeeded in establishing unconscionability as ANZ failed in its duty of inquiry and to disclose the effect of the substituted guarantee, and thus ANZ could not enforce Vlado’s guarantee in relation to the...

Court Disposition

Judgment for the third and fifth defendants (Vlado Tiricovski and Frenmast Pty Limited)

Orders

  • ['Judgment for the third and fifth defendants.' 'Further orders to be filed within 14 days or written submissions on matters in dispute.' "Liberty to apply on 3 days' notice."]