Mary Patricia Bakarich v Commonwealth Bank of Australia [2011] NSWSC 1559

Mary Patricia Bakarich v Commonwealth Bank of Australia [2011] NSWSC 1559

The contracts made with Mary and Allan were unjust to the extent they imposed liability beyond what the Bank determined as appropriate facility limits. No relief should be granted to their estates as any benefit would only assist Tony Bakarich, who is already liable on guarantees, and there would be no actual prejudice or benefit to the relevant parties. The sums in question are allocated according to beneficial ownership and proper apportionment between the parties based on contributions and obligations as determined in the findings.

Parties
First Plaintiff: Anthony George Bakarich (Executor of the Estate of the late Mary Patricia Bakarich); Second Plaintiff: Anthony George Bakarich (Executor of the Estate of the late Allan John Bakarich); Third Plaintiff: Anthony George Bakarich; Fourth Plaintiff: Vitlern Pty Limited; Fifth Plaintiff: A Bakarich Industries Pty Ltd; Defendant: Commonwealth Bank of Australia
Jurisdiction
Australia
Judgment Date
15 December 2011
Procedural Posture
Inquiry Into Remitted Questions From Court of Appeal / Judgment Following Inquiry
Outcome
Remitted questions answered; no relief granted to estates under Contracts Review Act; no restitution required.
Legal Topics
Guarantees, Unjust Contracts, Restitution, Estates, Security
Contracts Equity Guarantees Unjust Contracts Restitution Estates Security

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Parties

Anthony George Bakarich (Executor of the Estate of the late Mary Patricia Bakarich)

First Plaintiff

Anthony George Bakarich (Executor of the Estate of the late Allan John Bakarich)

Second Plaintiff

Anthony George Bakarich

Third Plaintiff

Vitlern Pty Limited

Fourth Plaintiff

A Bakarich Industries Pty Ltd

Fifth Plaintiff

Commonwealth Bank of Australia

Defendant

Procedural Posture

Inquiry Into Remitted Questions From Court of Appeal / Judgment Following Inquiry

Legal Issues

  1. 1 Whether sums paid to Commonwealth Bank of Australia were beneficially owned by Allan and/or Mary Patricia Bakarich or otherwise should count as their payments
  2. 2 Proportion of amounts paid relating to obligations of Demson Pty Ltd guaranteed by Allan and/or Mary
  3. 3 Solvency of estates of Mary and Allan

Ratio Decidendi

The contracts made with Mary and Allan were unjust to the extent they imposed liability beyond what the Bank determined as appropriate facility limits. No relief should be granted to their estates as any benefit would only assist Tony Bakarich, who is already liable on guarantees, and there would be no actual prejudice or benefit to the relevant parties. The sums in question are allocated according to beneficial ownership and proper apportionment between the parties based on contributions and obligations as determined in the findings.

Court Disposition

Remitted questions answered; no relief granted to estates under Contracts Review Act; no restitution required.

Orders

  • The whole sum paid to the respondent by Allan on 3 July 1993 was beneficially owned by him.
  • Of the sum paid by Allan, $585,556 related to obligations of Demson guaranteed by Allan by his guarantee of 18 August 1989.