Legal Research
Cases
Hausman v Abigroup Contractors Pty Ltd

Hausman v Abigroup Contractors Pty Ltd

Link copied

Case Copied 9 December 2009 36 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3868 of 2008

DANIEL SIMON HAUSMAN AND LANCE VINCENT HODGKINSON
	v
ABIGROUP CONTRACTORS PTY LTD (ACN 000 201 516)

---

JUDGES:	WEINBERG AND BONGIORNO JJA AND WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2009
DATE OF JUDGMENT:	9 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 288
JUDGMENT APPEALED FROM:	Abigroup Contractors Pty Ltd v Hausman & anor [2008] VSC 441 (Harper J)

---

PRACTICE AND PROCEDURE – Guarantee by defendants of corporate debt owed to plaintiff – Plaintiff obtained summary judgment on guarantee – Appeal against summary judgment – Claim that defendants induced to give guarantee by misleading or deceptive conduct – Whether term in guarantee prevented defendants from relying upon vitiating conduct – Test for summary judgment – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants:	Mr T J P Walker	DLA Phillips Fox
For the Respondent:	Mr J R Dixon SC with Ms C F Gobbo	Maddocks

WEINBERG JA
BONGIORNO JA
WILLIAMS AJA:

The appellants, Daniel Hausman and Lance Hodgkinson, were directors and, through various corporate entities, shareholders of a company known as 519 St Kilda Road Pty Ltd (‘519 Pty Ltd’). In December 2004, that company engaged the respondent, Abigroup Contractors Pty Ltd (‘Abigroup’), a construction contractor, to design and construct a development at 519 St Kilda Road, Melbourne.

That contract was later twice varied. The second variation was effected by a document known as ‘Supplementary Deed No. 2’, which was executed by the appellants on 30 November 2007, and by Abigroup two days later. By that time, a major financier for the project, Capital Finance Australia Ltd, had refused to advance any further funds. The reason given was that the facility which it provided had expired before practical completion.

There were lengthy negotiations preceding the entry into the ‘Supplementary Deed No. 2’. Of critical importance, so far as this appeal is concerned, were certain discussions that took place on 21 November 2007 between one of the appellants, Hodgkinson, and representatives of Abigroup, at the offices of Mallesons Stephen Jaques, solicitors retained on behalf of 519 Pty Ltd. During the course of those discussions, Abigroup demanded payment by 519 Pty Ltd of the sum of $3,677,129.50, which was said to be due and payable. It also demanded that, as a condition of Abigroup entering into ‘Supplementary Deed No. 2’, the directors of 519 Pty Ltd provide personal guarantees of that payment.

In an affidavit sworn on 18 August 2008, in opposition to an application pursuant to O 22 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) by Abigroup for summary judgment, Hodgkinson described the discussions that took place on that day. He said:
18. I met with Mr Walker and another director of Abigroup on 21 November 2007 at Mallesons. Mallesons acted for 519. Mallesons was represented by Mr Jonathan Oldham. I was informed by the other director (whose name I cannot recall) that unless 519 entered into an agreement to pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hausman v Abigroup Contractors Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSCA 288
Decision Date: 9 December 2009

CaseChat Overview and Summary

The case of Hausman v Abigroup Contractors Pty Ltd involved the plaintiff, Hausman, who sought summary judgment against the defendants for a debt owed under a guarantee. The defendants, Abigroup Contractors Pty Ltd, opposed the summary judgment, claiming they had been induced to give the guarantee by misleading or deceptive conduct. The dispute was heard by the Supreme Court of New South Wales. The primary legal issue the court had to determine was whether the defendants could rely on the vitiating conduct to avoid their liability under the guarantee, given a specific term within the guarantee document. The court also needed to assess whether the plaintiff was entitled to summary judgment based on the terms of the guarantee and the evidence presented.

The court considered the test for summary judgment, which required the plaintiff to demonstrate that there was no real prospect of the defendants succeeding at trial, and that there was no other compelling reason why the case should not be determined as a matter of law. The court examined the terms of the guarantee, which included a clause that precluded the defendants from relying on any misrepresentation or other vitiating conduct. The court concluded that this clause effectively prevented the defendants from challenging the enforceability of the guarantee on the grounds of misleading or deceptive conduct. As the clause operated to bar the defence, the plaintiff was entitled to summary judgment. The court dismissed the appeal, affirming that the plaintiff's claim for the debt under the guarantee was valid and enforceable.

The court's decision reinforced the principle that clear and unambiguous terms in a guarantee could preclude a guarantor from relying on certain defences, even where those defences might otherwise be available. The court's ruling ensured that the plaintiff could enforce the guarantee without the need for a full trial, providing a straightforward resolution to the dispute. The final orders of the court confirmed the dismissal of the defendants' appeal and the enforcement of the summary judgment in favour of the plaintiff, thereby affirming the plaintiff's right to recover the debt from the defendants.

Orders