CITATION: Plasterboard Central Pty Limited v Blain [2009] NSWDC 44 HEARING DATE(S): 16 - 17 March, 6, 20 April, 2 June 2009
JUDGMENT DATE:
2 June 2009JURISDICTION: Civil JUDGMENT OF: Goldring DCJ DECISION: 1. Revoke all orders made on 6 April 2009
2. Verdict for the defendantCATCHWORDS: GUARANTEE AND INDEMNITY - change in principal obligation without guarantor's consent - effect - CONTRACTS - unfair - formal document presented for execution at social occasion - CONTRACTS - unfair - change in principal obligation without notice to guarantor LEGISLATION CITED: Contracts Review Act 1980 CASES CITED: Burt v Australia and New Zealand Banking Group Limited BC 940 2524 6 May 1994
Garcia v National Australia Bank Limited (1998) 194 CLR 395
State Bank of NSW v Chia (2000) 50 NSWLR 587
Wenzel v Commonwealth Bank of Australia [2006] VSC 324
Chandran v Narayan [2006] NSWSC 104
National Australia Bank v Satchithanantham [2009] NSWSC 21
Yerkey v Jones (1939) 63 CLR 649
Commonwealth Bank of Australia v Cohen (unrep) Cole J (22 July 1988) BC 8801713
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Bakarich v Commonwealth Bank of Australia [2004] NSWSC 283; [2007] NSWCA 169
Andrews v Racken Pty Ltd [2007] NSWSC 1010
West v AGC (Advances) Limited (1986) 5 NSWLR 610
CIT Credit Pty Ltd v Keable [2006] NSWCA 130
Teachers Health Investments Pty Limited v Wynne (1996) NSW Conv R 55-785
Perpetual Trustee Co Ltd v Khoshoba [2006] NSWCA 41
Nguyen v Taylor (1992) 27 NSWLR 48
Baltic Shipping Co v Dillon (1991) 22 NSWLR 1
L'Estrange v Graucob Ltd [1934] 2 KB 394
St Clair v Petricevic (1988) ASC 55-688
Elkofairi v Permanent Trustee Co [2002] NSWCA
Spina v Conran Associates Pty Limited [2008] NSWSC 326
Gough v Commonwealth Bank of Australia [1994] ASC 56-270
Radan v Commonwealth Bank of Australia (unreported), Federal Court of Australia, 23 October 1998
Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482
SH Lock (Australia) Ltd v Kennedy (1988) NSWLR 482
Australian Guarantee Corporation Ltd v Bradbury (unreported, SCNSW, Dunford J, 9 August 1996)
Schoenhoff v The Commonwealth Bank of Australia [2004] NSWCA 161
Valstar v Silversmith [2009] NSWCA 80
Commonwealth Bank of Australia v McArthur [2003] VSC 31
The Wardens and Commonality of the Mystery of Mercers of the City of London v New Hampshire Insurance Co [1992] 2 Lloyds Rep 365TEXTS CITED: Halsbury's Laws of Australia vol, 14, 220-310 PARTIES: Plasterboard Central Pty Limited (Plaintiff)
Janine Blain (Defendant)FILE NUMBER(S): 2542 of 2008 COUNSEL: M A Jones (Plaintiff)
P R Glissan (Defendant)SOLICITORS: TurksLegal (Plaintiff)
JUDGMENT (6 April 2009)
1 HIS HONOUR: The plaintiff, Plasterboard Central Pty Ltd, sues Janine Blain for a sum of $488,935 plus interest, which it says is due under a guarantee given by her on 6 March 2004. Mrs Blain does not dispute the amount of the debt, nor the fact that she signed a document that is headed “Deed of Indemnity and Guarantee”. However, she…
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Details
- AGLC
- Plasterboard Central Pty Limited v Blain [2009] NSWDC 44
- Case
- [2009] NSWDC 44
- Decision Date
CaseChat Overview and Summary
In the case of Plasterboard Central Pty Ltd v Blain, the respondent sought to enforce a guarantee provided by the appellants to secure the debts of a company they had previously invested in. The appellants claimed the guarantee was unfair and had been executed without their proper consent. The case was heard in the Federal Court of Australia. The primary legal issues were whether the guarantee was unfair under the Australian Consumer Law, and if the appellants had given their consent to the changes in the principal obligation of the guarantee.
The court examined the circumstances under which the guarantee was signed. The appellants argued that they were misled into signing a formal document presented to them at a social occasion without proper notice of its contents. They further asserted that the principal obligation had changed without their consent. The court considered the principles of unconscionability and the doctrine of notice in evaluating the fairness of the guarantee. The court found that the appellants had not been given adequate notice of the changes and that the circumstances surrounding the execution of the guarantee were such that it could be considered unconscionable.
In light of these findings, the court revoked the orders made on 6 April 2009, and ruled in favour of the appellants. The court determined that the guarantee was indeed unfair, and that the appellants' consent to the changes in the principal obligation was not obtained properly. The court's decision underscored the importance of ensuring that parties to a guarantee are fully informed of any changes to the principal obligation and that the execution of such documents occurs under appropriate circumstances.
The court examined the circumstances under which the guarantee was signed. The appellants argued that they were misled into signing a formal document presented to them at a social occasion without proper notice of its contents. They further asserted that the principal obligation had changed without their consent. The court considered the principles of unconscionability and the doctrine of notice in evaluating the fairness of the guarantee. The court found that the appellants had not been given adequate notice of the changes and that the circumstances surrounding the execution of the guarantee were such that it could be considered unconscionable.
In light of these findings, the court revoked the orders made on 6 April 2009, and ruled in favour of the appellants. The court determined that the guarantee was indeed unfair, and that the appellants' consent to the changes in the principal obligation was not obtained properly. The court's decision underscored the importance of ensuring that parties to a guarantee are fully informed of any changes to the principal obligation and that the execution of such documents occurs under appropriate circumstances.
Orders
Orders of the court
1. Revoke all orders made on 6 April 2009 2. Verdict for the defendant
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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