MAILMAN v CHALLENGE BANK LTD [1991] NSWCA 182

MAILMAN v CHALLENGE BANK LTD [1991] NSWCA 182

Statements made by bank officers that 'normally' the bank would resort to the mortgaged property before guarantors were not clear representations or promises sufficient to found an estoppel or vary the terms of the written guarantee; the guarantee allowed enforcement against guarantors without requirement of prior sale of property; bank owed no duty to sell property at request of guarantors; and no misleading or deceptive conduct was established under s52 of the Trade Practices Act 1974.

Parties
Appellant: Mr and Mrs Mailman; Respondent: Challenge Bank Ltd
Jurisdiction
Australia
Judgment Date
12 December 1991
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Guarantee, Mortgage, Misleading or Deceptive Conduct, Estoppel
Commercial Law Banking Law Guarantee Mortgage Misleading or Deceptive Conduct Estoppel

Case Brief

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Parties

Mr and Mrs Mailman

Appellant

Challenge Bank Ltd

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether alleged representations by bank officers gave rise to an enforceable promise or estoppel preventing recovery against the guarantors prior to sale of the mortgaged property
  2. 2 Whether the bank owed a duty to the guarantors to sell the property prior to enforcing guarantees
  3. 3 Whether conduct amounted to misleading or deceptive conduct under s52 of the Trade Practices Act 1974

Ratio Decidendi

Statements made by bank officers that 'normally' the bank would resort to the mortgaged property before guarantors were not clear representations or promises sufficient to found an estoppel or vary the terms of the written guarantee; the guarantee allowed enforcement against guarantors without requirement of prior sale of property; bank owed no duty to sell property at request of guarantors; and no misleading or deceptive conduct was established under s52 of the Trade Practices Act 1974.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.