National Australia Bank Ltd v Savage [2013] NSWSC 1718

National Australia Bank Ltd v Savage [2013] NSWSC 1718

Mrs Savage, as a volunteer, who did not understand the nature and purport of the guarantee, should have the guarantee set aside, since the Bank did not take steps to explain the transaction to her nor ensure competent independent advice was given; the possession orders against her interest do not issue, but the Bank is entitled to possession against the first defendant.

Jurisdiction
Australia
Judgment Date
21 November 2013
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Judgment for possession against the first defendant. Guarantee against Mrs Savage set aside. Liberty to apply regarding second defendant. Costs ordered against the first defendant.
Legal Topics
['yerkey V Jones Equity' 'suretyship' 'guarantees' 'unconscionable Conduct' 'mortgages' 'possession Orders']
['equity' 'banking Law'] ['yerkey V Jones Equity' 'suretyship' 'guarantees' 'unconscionable Conduct' 'mortgages' 'possession Orders']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether Mrs Savage was a volunteer in respect of the guarantee' 'Whether Mrs Savage understood the purport and effect of the transaction' 'Whether the Bank took steps to explain the transaction or obtain independent advice for Mrs Savage' 'Whether causation (what Mrs Savage would have done if informed) is relevant']

Ratio Decidendi

Mrs Savage, as a volunteer, who did not understand the nature and purport of the guarantee, should have the guarantee set aside, since the Bank did not take steps to explain the transaction to her nor ensure competent independent advice was given; the possession orders against her interest do not issue, but the Bank is entitled to possession against the first defendant.

Court Disposition

Judgment for possession against the first defendant. Guarantee against Mrs Savage set aside. Liberty to apply regarding second defendant. Costs ordered against the first defendant.

Orders

  • ['Judgment for possession of the whole of the land comprised in Certificate of Title, Folio Identifier 39/xx and known as xx Byng Street, Orange, NSW.' 'Judgment for possession of the whole of the land comprised in Certificate of Title, Folio Identifier 2/xx and known as "Willapines" Molong Road, Orange, NSW.'...