Nationwide Capital Pty Limited -v- Boutros Constructions Pty Limited [2012] NSWSC 1472

Nationwide Capital Pty Limited -v- Boutros Constructions Pty Limited [2012] NSWSC 1472

No event of default occurred between 12 and 20 December 2010 and the 17 December 2010 demand could not validly accelerate the total amount then due. However, there was plain default by failure to repay the loan on the due date, and the asserted retained money arrangement did not discharge the borrower or guarantors. The whole agreement clause prevented it operating as a variation of the Deed of Loan, and any collateral arrangement or variation fell within clause 14.1 of Malke Boutros's guarantee so that her liability remained unconditional. The alleged agreement about sale of the Cosgrove Street property was not binding, and in any event no actual damage was proved. Nationwide was...

Jurisdiction
Australia
Judgment Date
30 November 2012
Procedural Posture
Equity Division Proceedings for Money Judgment Under a Loan, Guarantees and Indemnities, and Judicial Sale of Charged Property, With a Cross Claim / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the first, second and third defendants; judicial sale ordered for 23 Beaufort Street, Croydon Park; cross-claim dismissed; costs ordered against the first, second and third defendants.
Legal Topics
['loan Agreement Events of Default' 'acceleration of Repayment' 'whole Agreement Clause' 'collateral Agreement' 'variation of Guarantee Obligations' 'judicial Sale of Charged Land' 'cross Claim for Breach of Alleged Sale Agreement']
['contracts' 'guarantee and Indemnity' 'mortgage and Securities' 'equity'] ['loan Agreement Events of Default' 'acceleration of Repayment' 'whole Agreement Clause' 'collateral Agreement' 'variation of Guarantee Obligations' 'judicial Sale of Charged Land' 'cross Claim for Breach of Alleged Sale Agreement']

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Procedural Posture

Equity Division Proceedings for Money Judgment Under a Loan, Guarantees and Indemnities, and Judicial Sale of Charged Property, With a Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether an event of default occurred between 12 and 20 December 2010 under the Deed of Loan' 'Whether the retained money arrangement formed a term of, or collateral agreement to, the Loan Agreement' 'Whether any variation or collateral arrangement discharged Malke Boutros from liability under her guarantee' 'Whether the option to accelerate repayment was validly exercised by the demand of 17 December 2010' 'Whether there was a binding agreement to postpone sale of the Cosgrove Street property and sell it by auction after a marketing period' 'Whether Nationwide was entitled to money judgment and judicial sale of 23 Beaufort Street, Croydon Park']

Ratio Decidendi

No event of default occurred between 12 and 20 December 2010 and the 17 December 2010 demand could not validly accelerate the total amount then due. However, there was plain default by failure to repay the loan on the due date, and the asserted retained money arrangement did not discharge the borrower or guarantors. The whole agreement clause prevented it operating as a variation of the Deed of Loan, and any collateral arrangement or variation fell within clause 14.1 of Malke Boutros's guarantee so that her liability remained unconditional. The alleged agreement about sale of the Cosgrove Street property was not binding, and in any event no actual damage was proved. Nationwide was...

Court Disposition

Judgment for the plaintiff against the first, second and third defendants; judicial sale ordered for 23 Beaufort Street, Croydon Park; cross-claim dismissed; costs ordered against the first, second and third defendants.

Orders

  • ['Judgment for the plaintiff against the first, second and third defendants in the sum of $2,402,221.' 'Declare that the third defendant has charged property 23 Beaufort Street, Croydon Park, being the land in Certificate of Title Folio Identifier 46/1/5412 in favour of the plaintiff pursuant to Deed of Guarantee at...