Hardy v Coates Hire Operations Pty Ltd

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Hardy v Coates Hire Operations Pty Ltd [2022] NSWCA 122

Hearing dates:

17 May 2022

Date of orders:

11 July 2022

Decision date:

11 July 2022

Before:

White JA at [1];
Kirk JA at [3];
Basten AJA at [4]

Decision:

(1)   Dismiss the appeal from the judgment and orders in the District Court made on 20 July 2021 and entered on 24 August 2021.

(2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

GUARANTEE AND INDEMNITY – contract of guarantee – guarantee given by director of company’s obligations under credit agreement – whether guarantee enforceable

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – commercial experience of guarantor – director of substantial construction business – guarantee provided in hardcopy and electronic copy – effect of terms – availability of legal advice

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – guarantor suffered Lewy body dementia – progressive condition – symptoms not observed in relevant period – medical evidence as to “mild” condition after guarantee signed – evidence of business activity after guarantee signed

Legislation Cited:

Contracts Review Act 1980 (NSW), ss 7, 9

Cases Cited:

Hanna v Raoul [2018] NSWCA 201

Category:

Principal judgment

Parties:

Robert Hardy (Appellant)
Coates Hire Operations Pty Ltd (Respondent)

Representation:

Counsel:
Ms E Elbourne / Ms C Brain (Appellant)
Mr A d’Arville / Mr R Size (Respondent)

Solicitors:
Levitt Robinson (Appellant)
Coates Hire Operations (Respondent)

File Number(s):

2021/269154

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

24 August 2021

Before:

Gibb DCJ

File Number(s):

2019/83346

Judgment

1. WHITE JA: I agree with the reasons for judgment of Basten AJA and with the orders his Honour proposes.

2. It is unnecessary to consider what the position would be if the appellant had established that when he signed the guarantee he suffered from the cognitive deficits for which he contended. It was not suggested that the respondent had notice that he suffered such deficits when he gave the guarantee. As the appellant was the managing director of the company, and the trustee of his family trust was a shareholder of the company, it is far from clear that it would be just that the respondent, rather than the appellant, bear the risk of the company’s insolvency, even if he suffered the cognitive deficits asserted.

3. KIRK JA: I agree with Basten AJA.

4. BASTEN AJA: In September 2015 Robert L Hardy and his brother Danny J Hardy incorporated a company known as Hardy Bros Mining & Civil Construction Pty Ltd (“the company”). The appellant, Robert Hardy, appears to have had experience in the mining construction industry, but, in early 2016, sought to expand the business into civil construction work, due to a downturn in the mining business. In May 2016 the company entered into an agreement with the respondent, Coates Hire Operations Pty Ltd, by which the respondent provided commercial credit…