Harburg Nominees Pty Ltd v Deen

Harburg Nominees Pty Ltd initiated legal proceedings against Deen in relation to personal guarantees executed by Deen in respect of loans provided to a real estate development company. The defendant, Deen, argued that he was not liable under the guarantees due to alleged oral representations made by the plaintiffs' director, which allegedly promised non-enforcement of the guarantees and additional funding for the development. Deen contended that had he known these representations were false, he would have either obtained alternative finance or found another developer. The plaintiffs' director denied making such representations. Deen also sought an alternative outcome, requesting that any judgment against him be deferred or stayed until the development was sold.

The court was required to determine whether Deen had proven that the alleged representations were made, whether he was liable under the guarantees, and whether any judgment should be deferred or stayed until the property was sold. The court found that the fact that sales may continue was not a sufficient reason to defer judgment, as the guarantee allows for simultaneous, contemporaneous, or successive remedies. Additionally, the plaintiffs were not entitled to double recovery but were entitled to have Deen honour his guarantee. The court concluded that judgment should be entered for the plaintiffs against Deen.

The court exercised its discretion to award costs on the indemnity basis as per the contractual provision in the guarantee, which requires the guarantor to pay all reasonable costs on demand. Deen did not provide any reason why the court should not follow the parties' agreement. The court ordered judgment against Deen for the sum of $40,057,964.18, along with an order for Deen to pay the plaintiffs’ costs of and incidental to the proceeding to be assessed on the indemnity basis.