Jones v Khera [2002] NSWSC 69

Jones v Khera [2002] NSWSC 69

The appeal failed because the magistrate did not find, nor did evidence support, that the lender released the borrower within the meaning of clause 6 of the guarantee. Abandonment of security in bankruptcy proceedings did not amount to legal release of the plaintiff, therefore the original judgment and orders stood.

Jurisdiction
Australia
Judgment Date
20 February 2002
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed. Leave to appeal cross claim refused.
Legal Topics
['guarantees' 'mortgages' 'loan Agreements' 'bankruptcy Proceedings' 'appeal on Error of Law']
['banking and Finance Law' 'contract Law'] ['guarantees' 'mortgages' 'loan Agreements' 'bankruptcy Proceedings' 'appeal on Error of Law']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the abandonment of security by the lender constituted a release under clause 6 of the guarantee' 'Whether error of law was committed by the learned magistrate in characterising actions as abandonment versus release' "Whether the lender's action following bankruptcy of one debtor released the other debtor under security documents"]

Ratio Decidendi

The appeal failed because the magistrate did not find, nor did evidence support, that the lender released the borrower within the meaning of clause 6 of the guarantee. Abandonment of security in bankruptcy proceedings did not amount to legal release of the plaintiff, therefore the original judgment and orders stood.

Court Disposition

Appeal dismissed. Leave to appeal cross claim refused.

Orders

  • ["The plaintiff's summons is dismissed." "The plaintiff is ordered to pay the defendant's costs of the summons." 'Leave to appeal against the interlocutory order of the Local Court is refused.' "The defendant is ordered to pay the plaintiff's costs of that cross claim and of the application for leave in relation...