SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Haider v Gudelj | ||||||||||
| Citation: | [2021] ACTCA 9 | ||||||||||
| Hearing Date: | 11 February 2021 | ||||||||||
| Decision Date: | 21 April 2021 | ||||||||||
| Before: | Murrell CJ, Loukas-Karlsson and Perry JJ | ||||||||||
| Decision: | Appeal dismissed with costs. | ||||||||||
Catchwords: | EQUITY – EQUITY OF CONTRIBUTION – Equitable defences – Where appellants and respondents provided bank guarantees – Consideration of equitable contribution between guarantors – Whether improper conduct of appellants adequately pleaded – Whether appellants’ conduct meant that they had failed to come | ||||||||||
| to equity with clean hands | |||||||||||
| Legislation Cited: | Court Procedures Rules 2006 (ACT) r 407 | ||||||||||
| Cases Cited: | Albion Insurance Co Ltd v Government Insurance Office (NSW) | ||||||||||
| (1969) 121 CLR 342 AMP Bank Limited v Brown and Kavanagh [2017] NSWSC 313 | |||||||||||
| Ankar Pty Ltd v National Westminster Finance (Australia) Ltd | |||||||||||
| (1987) 162 CLR 549 | |||||||||||
| Australian Competition and Consumer Commission v CG | |||||||||||
| Berbatis Holdings Pty Ltd [2003] HCA 18; 214 CLR 51 BP Petroleum Development Ltd v Esso Petroleum Co Ltd [1987] SLT 345 Burke v LFOT Pty Limited [2002] HCA 17; 209 CLR 282 Caledonian Railway Co v Colt (1860) 3 Macq 833 | |||||||||||
| Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR | |||||||||||
| 460 Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184 Dunbar v Dunbar [1909] 2 Ch 639 Friend v Brooker [2009] HCA 21; 239 CLR 129 | |||||||||||
| Global Consulting Services Pty Ltd v Gresham Services | |||||||||||
| Property Investments Ltd [2018] NSWCA 255; 365 ALR 143 Haider v Gudelj [2019] ACTSC 213 HIH Claims Support Ltd v Insurance Australia Ltd [2011] HCA 31; 244 CLR 72 House v The King (1936) 55 CLR 499 Lavin v Toppi [2015] HCA 4; 254 CLR 459 Leigh-Mardon v Wawn (1995) 17 ACSR 741 Mahoney v McManus (1981) 180 CLR 370 Morgan Equipment Company v Rodgers (1993) 32 NSWLR 467 Muschinski v Dodds (1985) 160 CLR 583 Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116 Parker v Alessi [2011] NSWSC 947 | |||||||||||
| Sky Channel Pty Ltd v Tszyu (No 2) [2000] NSWSC 1150 | |||||||||||
| Trotter v Franklin [1991] 2 NZLR 92 | |||||||||||
| Volanne Pty Ltd v International Consulting and Business | |||||||||||
| Management (ICBM) Pty Ltd (No 2) [2017] ACTCA 33; 322 FLR 324 Water Board v Moustakas (1988) 180 CLR 491 Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 | |||||||||||
| Parties: | Tedo Iqtidar Haider (First Appellant) Maria Haider (Second Appellant) | ||||||||||
| Vinko Gudelj (First Respondent) Carlo Anthony Pasquariello (Second Respondent) | |||||||||||
| Merhdad (Nick) Takalubegash (Third Respondent) Rita Elizabeth Takalubegash (Fourth Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| M Karam with H Cooper (First and Second Appellant) P Greenwood SC with D Reynolds (First to Fourth Respondents) | |||||||||||
| Solicitors | |||||||||||
| McInnes Wilson (First and Second Appellant) | |||||||||||
| Kamy Saeedi Law (First to Fourth Respondents) | |||||||||||
| File Number: | ACTCA 39 of 2019 | ||||||||||
| Decision under appeal: |
| ||||||||||
| THE COURT: | |||||||||||
| Introduction |
1. Dr and Mrs Haider (the appellants, who are husband and…
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- Haider v Gudelj [2021] ACTCA 9
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- [2021] ACTCA 9
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CaseChat Overview and Summary
The appellants, Haider and others, and the respondents, Gudelj and others, were parties to a dispute concerning equitable contribution between guarantors. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the court were whether the appellants had adequately pleaded equitable defences to a claim for contribution, and whether the conduct of the appellants amounted to a failure to come to equity with clean hands, thereby disentitling them to contribution.
The court considered the principles of equitable contribution between co-guarantors, noting that such a claim is founded on the equitable principle that a surety who has paid more than their proportionate share of a debt is entitled to contribution from co-sureties. The court found that the appellants' pleading of improper conduct was insufficient to establish a defence. Furthermore, the court determined that the conduct relied upon by the appellants did not demonstrate that they had failed to approach the court with clean hands, a prerequisite for equitable relief.
The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.
The primary legal issues before the court were whether the appellants had adequately pleaded equitable defences to a claim for contribution, and whether the conduct of the appellants amounted to a failure to come to equity with clean hands, thereby disentitling them to contribution.
The court considered the principles of equitable contribution between co-guarantors, noting that such a claim is founded on the equitable principle that a surety who has paid more than their proportionate share of a debt is entitled to contribution from co-sureties. The court found that the appellants' pleading of improper conduct was insufficient to establish a defence. Furthermore, the court determined that the conduct relied upon by the appellants did not demonstrate that they had failed to approach the court with clean hands, a prerequisite for equitable relief.
The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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