Willis & Bowring v Ziade Investments No. 2 & 2 Ors [2005] NSWSC 952

Willis & Bowring v Ziade Investments No. 2 & 2 Ors [2005] NSWSC 952

The formal loan agreement and guarantees are enforceable as against the defendants. No binding representations by the lender required lending on other terms. No conduct by the lender operated to discharge the guarantors. Mrs Ziade was not a volunteer, understood the effect of her guarantee, and was not entitled to relief under the Garcia v National Australia Bank Ltd principles. No breach or unconscionable conduct by the lender was established. The plaintiff is entitled to judgment for the amount owing and possession. Cross-claims are dismissed.

Parties
Plaintiff: Willis & Bowring Mortgage Investments Ltd; First Defendant: Ziade Investments No. 2 Pty Ltd; Second Defendant: Neaf Ziade; Third Defendant: Mrs Ziade; Cross Defendant: Platinum Capital Mortgages Pty Ltd (formerly Morgan Pacific); Cross Defendant: Mr Tozer
Jurisdiction
Australia
Judgment Date
23 September 2005
Procedural Posture
Mortgage Recovery and Guarantees Possession and Money Claim, With Cross Claims / Final Judgment After Hearing
Outcome
Judgment for the plaintiff. Plaintiff to bring in short minutes of order. Judgment for possession and for debt. All relevant cross-claims dismissed.
Legal Topics
Mortgages, Guarantees, Loan Contracts, Unconscionable Conduct, Rectification of Contract, Damages, Bankruptcy, Corporations
Equity Banking and Finance Law Commercial Law Mortgages Guarantees Loan Contracts Unconscionable Conduct Rectification of Contract +3 more

Case Brief

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Parties

Willis & Bowring Mortgage Investments Ltd

Plaintiff

Ziade Investments No. 2 Pty Ltd

First Defendant

Neaf Ziade

Second Defendant

Mrs Ziade

Third Defendant

Platinum Capital Mortgages Pty Ltd (formerly Morgan Pacific)

Cross Defendant

Mr Tozer

Cross Defendant

Procedural Posture

Mortgage Recovery and Guarantees Possession and Money Claim, With Cross Claims / Final Judgment After Hearing

Legal Issues

  1. 1 Whether the guarantees are enforceable against the defendants
  2. 2 Whether the lender was obliged to lend on different terms than those in the written contract
  3. 3 Whether alleged representations preclude enforcement of the guarantees

Ratio Decidendi

The formal loan agreement and guarantees are enforceable as against the defendants. No binding representations by the lender required lending on other terms. No conduct by the lender operated to discharge the guarantors. Mrs Ziade was not a volunteer, understood the effect of her guarantee, and was not entitled to relief under the Garcia v National Australia Bank Ltd principles. No breach or unconscionable conduct by the lender was established. The plaintiff is entitled to judgment for the amount owing and possession. Cross-claims are dismissed.

Court Disposition

Judgment for the plaintiff. Plaintiff to bring in short minutes of order. Judgment for possession and for debt. All relevant cross-claims dismissed.

Orders

  • Order that the plaintiff bring in short minutes of order in relation to its statement of claim and the fourth cross-claim in accordance with these reasons.
  • Dismiss the cross-claim of the third cross-claimant to the second cross-claim with no order as to costs.