Ausmezz Pty Ltd v Goldberger

Ausmezz Pty Ltd, the borrower, brought an action against the guarantors of a loan, including Goldberger, alleging anticipatory breach of contract and seeking to enforce the guarantees. The matter was heard in the Supreme Court of New South Wales. The dispute centred on whether the borrower's failure to provide written notification to the guarantors that it would be unable to meet its obligations under a Facility Agreement constituted a breach of contract, and if such a breach discharged the guarantors from their obligations. Additionally, the court needed to determine whether the guarantors were entitled to relief under the Australian Securities and Investment Commission Act 2001 (Cth) due to misleading and deceptive conduct.

The court held that the borrower's failure to provide written notification was a breach of the terms of the Facility Agreement, and this breach discharged the guarantors from their obligations. The guarantors were not required to make any payments under the guarantees. The court found that the defendants had relied on a representation made by the borrower that they would be provided with written notice before any action was taken under the guarantees, and this representation was misleading and deceptive. As a result, the guarantors were entitled to relief under the Australian Securities and Investment Commission Act 2001 (Cth).

The court's reasoning was grounded in the terms of the Facility Agreement and the common law principles of contract and equity. The court held that the guarantors were not required to make any payments under the guarantees, and the borrower's failure to provide written notification was a breach of the terms of the Facility Agreement. The court also held that the guarantors were entitled to relief under the Australian Securities and Investment Commission Act 2001 (Cth) due to misleading and deceptive conduct. The final orders of the court were that the borrower's claim against the guarantors was dismissed, and the guarantors were entitled to relief under the Australian Securities and Investment Commission Act 2001 (Cth).