Grace v Cartwright [2000] NSWSC 13

Grace v Cartwright [2000] NSWSC 13

On the probabilities, the Deed of 9 May 1991 was executed as a genuine acknowledgment of a genuine engagement intended to be legally enforceable. The defendant did not establish the alleged non-binding representation, estoppel, waiver, release, Contracts Review Act or Unfair Contracts Act basis, or any other defence to enforcement. The plaintiff was therefore entitled to judgment for $75,536 plus interest. The plaintiff did not establish entitlement to recover the additional surety contribution, the costs of proceedings against Morgan, or the motor vehicle shortfall claim.

Jurisdiction
Australia
Judgment Date
02 February 2000
Procedural Posture
Civil Money Claim Arising From a Deed, Surety Contribution, and Guarantee Related Claims / Judgment After Hearing
Outcome
Judgment for the plaintiff on the claim based on the Deed of 9 May 1991 and on the defendant's cross-claims; the plaintiff's second and third claims were not established.
Legal Topics
['enforceability of Deed' 'estoppel by Representation' 'waiver and Release' 'contracts Review Act' 'contribution Among Co Sureties' 'interest on Judgment Debt']
['contract Law' 'equity' 'guarantees and Sureties' 'civil Procedure'] ['enforceability of Deed' 'estoppel by Representation' 'waiver and Release' 'contracts Review Act' 'contribution Among Co Sureties' 'interest on Judgment Debt']

Case Brief

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Procedural Posture

Civil Money Claim Arising From a Deed, Surety Contribution, and Guarantee Related Claims / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Deed dated 9 May 1991 was intended to constitute a genuine legally enforceable engagement between the plaintiff and the defendant.' 'Whether the defendant executed the Deed because of a representation that it would not have legal effect and was only to induce James Sydney Morgan to sign a similar document.' 'Whether the plaintiff was prevented by estoppel, waiver, release, delay or the circumstances of payment from enforcing the Deed.' 'Whether relief should be granted under the Contracts Review Act or Unfair Contracts Act in relation to the Deed.' 'Whether the plaintiff could recover additional contribution from the defendant under the 23 December 1987 surety agreement and costs of proceedings against Morgan.' 'Whether the plaintiff could recover from the defendant part of the shortfall arising from the Esanda-financed motor vehicle transaction.' 'What interest should be awarded on the judgment sum.']

Ratio Decidendi

On the probabilities, the Deed of 9 May 1991 was executed as a genuine acknowledgment of a genuine engagement intended to be legally enforceable. The defendant did not establish the alleged non-binding representation, estoppel, waiver, release, Contracts Review Act or Unfair Contracts Act basis, or any other defence to enforcement. The plaintiff was therefore entitled to judgment for $75,536 plus interest. The plaintiff did not establish entitlement to recover the additional surety contribution, the costs of proceedings against Morgan, or the motor vehicle shortfall claim.

Court Disposition

Judgment for the plaintiff on the claim based on the Deed of 9 May 1991 and on the defendant's cross-claims; the plaintiff's second and third claims were not established.

Orders

  • ["Judgment for the plaintiff for $75,536 together with interest calculated at the rate of 14% per annum on quarterly rests for the period from 9 May 1991 to 15 January 1992, and at the rates set relevantly in Schedule J of the Supreme Court Rules for the period from the date of service of the Statement of Claim...