Kailis Bros Pty Ltd v Clarke [2020] NSWSC 1150

Kailis Bros Pty Ltd v Clarke [2020] NSWSC 1150

The defendant executed the agreement both on behalf of the company and personally as guarantor, thereby granting a charge in favour of the plaintiff over his interest in the property under clause 17 of the Trading Agreement.

Parties
Plaintiff: Kailis Bros Pty Ltd; Defendant: Justin Troy Clarke
Jurisdiction
Australia
Judgment Date
27 August 2020
Procedural Posture
Principal Judgment / Determination on the Papers Following a Summons
Outcome
Declaration made that defendant granted a charge over his interest in the property in favour of the plaintiff; costs awarded to the plaintiff.
Legal Topics
Charges, Guarantees, Real Property, Trading Agreements, Caveats
Equity Mortgages and Securities Charges Guarantees Real Property Trading Agreements Caveats

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Parties

Kailis Bros Pty Ltd

Plaintiff

Justin Troy Clarke

Defendant

Procedural Posture

Principal Judgment / Determination on the Papers Following a Summons

Legal Issues

  1. 1 Whether the defendant executed the Terms of Trading Agreement as a guarantor as well as on behalf of the company
  2. 2 Whether the plaintiff has a caveatable interest in the defendant’s interest in the Thornton property under the agreement
  3. 3 Whether a charge was created over the defendant’s real property to secure debts

Ratio Decidendi

The defendant executed the agreement both on behalf of the company and personally as guarantor, thereby granting a charge in favour of the plaintiff over his interest in the property under clause 17 of the Trading Agreement.

Court Disposition

Declaration made that defendant granted a charge over his interest in the property in favour of the plaintiff; costs awarded to the plaintiff.

Orders

  • Declaration that the defendant granted a charge in favour of the plaintiff over his interest in the Thornton property.
  • Costs awarded to the plaintiff.