Barecall Pty Limited v David Hoban [2010] NSWCA 269

Barecall Pty Limited v David Hoban [2010] NSWCA 269

The appeal failed because Barecall did not establish an estoppel binding the respondents to guarantee Aqualounge's obligations: from November 2003 Barecall, through its solicitor, knew that two signed guarantees had not been provided and nevertheless continued the commercial relationship. In any event, applying Chan v Cresdon, the unregistered guarantees were ineffective in the form in which they were taken.

Jurisdiction
Australia
Judgment Date
12 October 2010
Procedural Posture
Appeal From Orders Dismissing Proceedings Seeking to Enforce Guarantees of Debts Under Lease, Sub Lease and Variation of Lease Instruments / Court of Appeal Ex Tempore Judgment
Outcome
Appeal dismissed; third respondent's application to adduce fresh evidence dismissed; costs orders stood over pending resolution of the costs appeal.
Legal Topics
['enforceability of Guarantee Covenants in Variation of Lease' 'estoppel by Representation or Convention' 'imputed Knowledge of Solicitor to Client' 'fresh Evidence on Appeal' 'costs of Appeal']
['guarantee and Indemnity' 'contract Law' 'estoppel' 'real Property' 'civil Procedure'] ['enforceability of Guarantee Covenants in Variation of Lease' 'estoppel by Representation or Convention' 'imputed Knowledge of Solicitor to Client' 'fresh Evidence on Appeal' 'costs of Appeal']

Case Brief

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Procedural Posture

Appeal From Orders Dismissing Proceedings Seeking to Enforce Guarantees of Debts Under Lease, Sub Lease and Variation of Lease Instruments / Court of Appeal Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the respondents were bound by enforceable guarantees of Aqualounge Manly Pty Ltd's obligations under the varied lease arrangements." 'Whether Barecall established an estoppel by representation or conventional estoppel based on assurances that five personal guarantees would be executed.' "Whether Barecall's solicitor's knowledge that two signed guarantees had not been received was to be imputed to Barecall." 'Whether the third respondent should be permitted to adduce fresh evidence on appeal.' 'How costs of the appeal and costs below should be dealt with pending the costs appeal.']

Ratio Decidendi

The appeal failed because Barecall did not establish an estoppel binding the respondents to guarantee Aqualounge's obligations: from November 2003 Barecall, through its solicitor, knew that two signed guarantees had not been provided and nevertheless continued the commercial relationship. In any event, applying Chan v Cresdon, the unregistered guarantees were ineffective in the form in which they were taken.

Court Disposition

Appeal dismissed; third respondent's application to adduce fresh evidence dismissed; costs orders stood over pending resolution of the costs appeal.

Orders

  • ['Dismiss the appeal, subject to the following orders.' 'Dismiss the application made by the third respondent for the adducing of fresh evidence with no order as to costs.' "Direct the parties, through the appellant, to file an additional Orange Book containing the costs judgment, costs orders, and all parties'...