Hatziplis v Photios [2017] NSWSC 397

Hatziplis v Photios [2017] NSWSC 397

Even assuming George Hatziplis said the Lender would never call on the guarantee, James Photios did not rely on that statement when he executed the guarantee; his evidence and subsequent conduct showed he was prepared to sign what was needed to secure the loan and treated himself as liable. The Convertible Note Deed was the underlying loan agreement and merely contemplated security; it was not itself a mortgage for s 205 of the Duties Act 1997 (NSW), so s 211 did not render it unenforceable. The Lender was therefore entitled to judgment against James Photios for the debt and interest.

Jurisdiction
Australia
Judgment Date
10 April 2017
Procedural Posture
Equity Commercial List / Principal Judgment
Outcome
Judgment to be entered in favour of the second plaintiff against the defendant for the amount of the debt and interest.
Legal Topics
['enforceability of Personal Guarantee' 'reliance on Alleged Representation' 'mortgage Duty' 'duties Act 1997 (nsw) Ss 205 and 211']
['guarantee and Indemnity' 'duties'] ['enforceability of Personal Guarantee' 'reliance on Alleged Representation' 'mortgage Duty' 'duties Act 1997 (nsw) Ss 205 and 211']

Case Brief

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Procedural Posture

Equity Commercial List / Principal Judgment

Legal Issues

  1. 1 ['Whether George Hatziplis represented to James Photios that the Lender would never call on the guarantee and whether James relied on any such representation when executing the guarantee.' 'Whether the Convertible Note Deed constituted a mortgage for the purpose of s 205 of the Duties Act 1997 (NSW) and was unenforceable pending payment of duty by reason of s 211 of that Act.']

Ratio Decidendi

Even assuming George Hatziplis said the Lender would never call on the guarantee, James Photios did not rely on that statement when he executed the guarantee; his evidence and subsequent conduct showed he was prepared to sign what was needed to secure the loan and treated himself as liable. The Convertible Note Deed was the underlying loan agreement and merely contemplated security; it was not itself a mortgage for s 205 of the Duties Act 1997 (NSW), so s 211 did not render it unenforceable. The Lender was therefore entitled to judgment against James Photios for the debt and interest.

Court Disposition

Judgment to be entered in favour of the second plaintiff against the defendant for the amount of the debt and interest.

Orders

  • ['Judgment to be entered in favour of the second plaintiff against the defendant.' 'Counsel to bring in short minutes to give effect to the reasons, including provision for costs.']