Rhodes Bay Apartments Pty Ltd v Gay [2011] NSWSC 532

Rhodes Bay Apartments Pty Ltd v Gay [2011] NSWSC 532

The documentary and business record evidence, including the emails, Deed of Loan, settlement adjustment sheet, balance sheet and loan records, established that the plaintiff advanced $200,000 to Dimitrios Lazanis on 21 December 2007 and that the amount had not been repaid, so Mr Gay was liable as guarantor for...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 June 2011
Procedural Posture
Claim Against a Guarantor Under a Deed of Loan and Claim for Contractual Costs and Expenses / Principal Judgment After Hearing; Proceedings Discontinued Against the Second Defendant During the Hearing
Outcome
Judgment for the plaintiff against the first defendant for $335,464; the plaintiff's claim for $46,819.45 under cl 9.1(b) was dismissed; the first defendant was ordered to pay 90 per cent of the plaintiff's costs of the proceedings.
Legal Topics
['guarantee of Advance' 'whether Advance Was Made to Named Borrower' 'construction of Loan Deed' 'contractual Recovery of Costs and Expenses' 'caveat Lapsing Notice']
['contract Law' 'guarantees' 'equity' 'real Property Security'] ['guarantee of Advance' 'whether Advance Was Made to Named Borrower' 'construction of Loan Deed' 'contractual Recovery of Costs and Expenses' 'caveat Lapsing Notice']

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Procedural Posture

Claim Against a Guarantor Under a Deed of Loan and Claim for Contractual Costs and Expenses / Principal Judgment After Hearing; Proceedings Discontinued Against the Second Defendant During the Hearing

Legal Issues

  1. 1 ['Whether the plaintiff advanced $200,000 to Dimitrios Lazanis on 21 December 2007 under the Deed of Loan.' 'Whether Neil James Gay was liable as guarantor for the advance and interest.' "Whether legal costs concerning Mr Gay's Notice to Caveator of Proposed Lapsing of Caveat were costs relating to and in connection with any variation or discharge of a security under cl 9.1(b) of the Deed of Loan."]

Ratio Decidendi

The documentary and business record evidence, including the emails, Deed of Loan, settlement adjustment sheet, balance sheet and loan records, established that the plaintiff advanced $200,000 to Dimitrios Lazanis on 21 December 2007 and that the amount had not been repaid, so Mr Gay was liable as guarantor for principal and interest totalling $335,464. The plaintiff's separate claim for $46,819.45 in costs under cl 9.1(b) failed because costs relating to the lapsing notice and caveat were not costs relating to or in connection with any variation or discharge of the securities under the Deed of Loan.

Court Disposition

Judgment for the plaintiff against the first defendant for $335,464; the plaintiff's claim for $46,819.45 under cl 9.1(b) was dismissed; the first defendant was ordered to pay 90 per cent of the plaintiff's costs of the proceedings.

Orders

  • ['Judgment for the plaintiff against the first defendant for $335,464.' "The first defendant is to pay 90 per cent of the plaintiff's costs of the proceedings." 'The exhibits may be returned.']