Zhong v Shield Resources Pty Ltd [2023] NSWSC 1611

Zhong v Shield Resources Pty Ltd [2023] NSWSC 1611

Shield Resources was liable to repay the sum of $1,151,645.06 advanced, plus interest, as the obligation was apportionable and the deed did not express or imply that payment of the full $2 million was a condition precedent to the obligation to repay. The second defendant did not become bound to charge her property as the deed did not create such an obligation, nor was rectification available as there was no mutual intention. The third defendant did not make actionable misrepresentations, and the representations relied on were not established as causative of loss. The principle in Ankar would apply if there had been a guarantee obligation, but the plaintiff failed to prove such obligation...

Jurisdiction
Australia
Judgment Date
18 December 2023
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Judgment for the plaintiff against the first defendant. Judgment for the second and third defendants against the plaintiff. Dismissal of cross-claim. Costs orders made.
Legal Topics
['breach of Contract' 'loan Agreements' 'failure of Consideration' 'caveatable Interests' 'rectification' 'guarantee Discharge' 'misleading and Deceptive Conduct']
['contract' 'real Property' 'insurance' 'guarantee and Indemnity'] ['breach of Contract' 'loan Agreements' 'failure of Consideration' 'caveatable Interests' 'rectification' 'guarantee Discharge' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether Shield Resources is liable for the sum advanced under the loan agreement, plus interest' 'Whether the second defendant is contractually obligated to provide a charge over her property and/or liable to rectify the agreement' 'Whether the third defendant made misleading or deceptive representations under the Australian Consumer Law' "Whether the principle in Ankar Pty Ltd v National Westminster Finance applies to discharge the second defendant's obligations"]

Ratio Decidendi

Shield Resources was liable to repay the sum of $1,151,645.06 advanced, plus interest, as the obligation was apportionable and the deed did not express or imply that payment of the full $2 million was a condition precedent to the obligation to repay. The second defendant did not become bound to charge her property as the deed did not create such an obligation, nor was rectification available as there was no mutual intention. The third defendant did not make actionable misrepresentations, and the representations relied on were not established as causative of loss. The principle in Ankar would apply if there had been a guarantee obligation, but the plaintiff failed to prove such obligation...

Court Disposition

Judgment for the plaintiff against the first defendant. Judgment for the second and third defendants against the plaintiff. Dismissal of cross-claim. Costs orders made.

Orders

  • ['Judgment for the plaintiff against the first defendant for $1,151,645.06 plus interest at 12% per annum from 21 September 2018 to the date of judgment.' 'Judgment for the second defendant against the plaintiff.' 'Judgment for the third defendant against the plaintiff.' 'The cross-claim by the first and second...