Insurance Australia Ltd v Holden & Ors [2021] NSWDC 142

Insurance Australia Ltd v Holden & Ors [2021] NSWDC 142

The plaintiff is entitled to enforce the 2004 Deed of Guarantee and Indemnity against the first defendant, the deed having been validly executed and explained to her by an independent solicitor. Defences based on lack of execution, lack of understanding, unconscionability under general law and s 21 ACL, and unjust contract pursuant to s 7 Contracts Review Act 1980 (NSW) were not made out on the evidence; and there was no bar based on prior releases or unreasonable delay. The Deed was validly assigned through statutory schemes, and the amounts claimed are recoverable. No relief can be granted on the 2006 Deed due to the absence of demand.

Parties
Plaintiff: Insurance Australia Ltd; First Defendant: Dorthe Holden; Second Defendant: Sharlene Holden; Third Defendant: Margaret May Holden; Fourth Defendant: Margaret May Holden as Administrator of the Estate of the Late James Holden
Jurisdiction
Australia
Judgment Date
30 April 2021
Procedural Posture
Civil / Judgment After Contested Hearing; Ex Parte as to Second, Third and Fourth Defendants
Outcome
Judgment for the plaintiff against all defendants for $529,148.05 plus costs (first defendant contested, others ex parte); no relief as to the 2006 Deed.
Legal Topics
Guarantees and Indemnities, Construction of Contracts, Unconscionable Conduct, Unjust Contracts, Home Building Insurance, Assignment of Guarantees, Declaratory Relief
Contract Law Insurance Law Equity Consumer Law Guarantees and Indemnities Construction of Contracts Unconscionable Conduct Unjust Contracts +3 more

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Parties

Insurance Australia Ltd

Plaintiff

Dorthe Holden

First Defendant

Sharlene Holden

Second Defendant

Margaret May Holden

Third Defendant

Margaret May Holden as Administrator of the Estate of the Late James Holden

Fourth Defendant

Procedural Posture

Civil / Judgment After Contested Hearing; Ex Parte as to Second, Third and Fourth Defendants

Legal Issues

  1. 1 Whether the first defendant is bound by the Deeds of Guarantee and Indemnity (2004 and 2006)
  2. 2 Whether the Deeds are enforceable by the plaintiff following schemes of transfer
  3. 3 Whether the terms entitle recovery of amounts claimed

Ratio Decidendi

The plaintiff is entitled to enforce the 2004 Deed of Guarantee and Indemnity against the first defendant, the deed having been validly executed and explained to her by an independent solicitor. Defences based on lack of execution, lack of understanding, unconscionability under general law and s 21 ACL, and unjust contract pursuant to s 7 Contracts Review Act 1980 (NSW) were not made out on the evidence; and there was no bar based on prior releases or unreasonable delay. The Deed was validly assigned through statutory schemes, and the amounts claimed are recoverable. No relief can be granted on the 2006 Deed due to the absence of demand.

Court Disposition

Judgment for the plaintiff against all defendants for $529,148.05 plus costs (first defendant contested, others ex parte); no relief as to the 2006 Deed.

Orders

  • Judgment for the plaintiff against the first defendant for $529,148.05.
  • Order the first defendant to pay the plaintiff's costs.