Naegeli v Dalton and Schaeffer as Executors of the Estate of the late John Herman Schaeffer (No 2) [2023] NSWSC 626

Naegeli v Dalton and Schaeffer as Executors of the Estate of the late John Herman Schaeffer (No 2) [2023] NSWSC 626

The executors' liability remained joint and several with the corporate defendants under cl 1.3 of the Guarantee, but was confined by the Contracts Review Act 1980 (NSW) to $500,000 plus interest. Interest was to accrue at the contractual default rate of 10% per annum from day to day, including after judgment, because the Guarantee contained a clear agreement to that effect. The executors were not entitled to their costs because they had denied all liability and failed on the issues occupying most of the hearing, but the plaintiff's recoverable costs against them should be reduced to 80% to reflect their limited success; the corporate defendants were to pay the plaintiff's costs.

Jurisdiction
Australia
Judgment Date
09 June 2023
Procedural Posture
Equity Commercial List; Consequential Orders / Consequential Orders Following Primary Judgment
Outcome
Defendants' liability to be joint and several; interest to accrue on terms specified in the Guarantee; first defendants to pay 80% of plaintiff's costs; corporate defendants to pay plaintiff's costs.
Legal Topics
['contract of Guarantee' 'co Guarantors' 'joint and Several Liability' 'interest' 'daily Rests' 'party/party Costs' 'unjust Contract']
['guarantee and Indemnity' 'contract' 'costs'] ['contract of Guarantee' 'co Guarantors' 'joint and Several Liability' 'interest' 'daily Rests' 'party/party Costs' 'unjust Contract']

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Procedural Posture

Equity Commercial List; Consequential Orders / Consequential Orders Following Primary Judgment

Legal Issues

  1. 1 ["Whether the liability of the executors of the late Mr Schaeffer's estate should be joint or several with that of the corporate defendants." 'The basis on which interest should accrue under the Guarantee.' "What costs orders should be made given the executors' limited success and the plaintiff's success against the corporate defendants."]

Ratio Decidendi

The executors' liability remained joint and several with the corporate defendants under cl 1.3 of the Guarantee, but was confined by the Contracts Review Act 1980 (NSW) to $500,000 plus interest. Interest was to accrue at the contractual default rate of 10% per annum from day to day, including after judgment, because the Guarantee contained a clear agreement to that effect. The executors were not entitled to their costs because they had denied all liability and failed on the issues occupying most of the hearing, but the plaintiff's recoverable costs against them should be reduced to 80% to reflect their limited success; the corporate defendants were to pay the plaintiff's costs.

Court Disposition

Defendants' liability to be joint and several; interest to accrue on terms specified in the Guarantee; first defendants to pay 80% of plaintiff's costs; corporate defendants to pay plaintiff's costs.

Orders

  • ["The liability of the executors of the late Mr Schaeffer's estate remains joint and several with that of the corporate defendants, subject to the estate's liability being confined to repayment of $500,000 with interest at 10% per annum." 'Interest is to accrue at 10% per annum on the basis specified in the...