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Print National v Helps

Print National v Helps

Case [2007] NSWSC 1050 27 November 2007

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CITATION: Print National v Helps [2007] NSWSC 1050

HEARING DATE(S): 4 September 2007

JUDGMENT DATE :
27 November 2007

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The application for an extension of time to file the appeal is refused; (2) The appeal is dismissed; (3) The decision of Freund LCM dated 18 December 2006 is affirmed; (4) The amended summons filed 4 September 2007 is dismissed; (5) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: APPEAL - Local Court Magistrate - guarantee

LEGISLATION CITED: Fair Trading Act 1987
Local Courts Act 1982
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Brueckner v Carroll (1995) ATPR 41-379
Carr v Neill [1999] NSWSC 1263
Clark Equipment Credit of Australia Ltd v Kiyose (1989) 21 NSWLR 160
Devries v Australian National Railways Commission (1993) 177 CLR 472
Follacchio v Harvard Securities Pty Limited [2002] FCA 1067
Gallo v Dawson (1990) 64 ALJR 458
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Jebeli v Modir and Golyaei [2005] NSWCA 184
Jung v Son, NSWCA 18 December 1998 (unreported)
NEC Information Systems Pty Limited v Linton (1985) NSWConVR 55-240
Pettitt v Dunkley (1971) 1 NSWLR 376
R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082
Ronald Wallace Gould v Peter Vaggelas (1984) 157 CLR 215
Scottish Amicable Life Assurance Society v Reg Austin Insurance Pty Limited (1985) NSWConvR 55-249
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council (2005) 220 CLR 517
VSH Ltd v BKS Air Transport Ltd [1964] 1 Lloyds Rep 460
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

PARTIES: Print National Pty Ltd - Plaintiff
Mark Helps - Defendant

FILE NUMBER(S): SC 10493/2007

COUNSEL: Mr D Allen (Plaintiff)
Mr T Rickard (Defendant)

SOLICITORS: Catalyst Legal (Plaintiff)
Alfred J Morgan & Son (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 3926/2006

LOWER COURT JUDICIAL OFFICER : Freund LCM

LOWER COURT DATE OF DECISION: 18 December 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 27 NOVEMBER 2007
10493/2007 - PRINT NATIONAL PTY LTD v

MARK HELPS

JUDGMENT (Appeal decision of Local Court Magistrate
- guarantee)

1 HER HONOUR: By amended summons filed 4 September 2007, the plaintiff seeks firstly, an order that time be extended pursuant to Rule 46.3 of the Uniform Civil Procedure Rules 2005 for the filing of this summons to the date of filing this summons; secondly, that orders 1 and…

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.

Continue reading Print National v Helps

Details

AGLC: Print National v Helps [2007] NSWSC 1050
Case: [2007] NSWSC 1050
Decision Date: 27 November 2007

CaseChat Overview and Summary

In the case of Print National v Helps, the appellant sought to recover money from the respondent, arguing that the respondent had breached a guarantee agreement. The dispute was heard in the Local Court of New South Wales, with the decision subsequently appealed. The appellant, Print National, claimed that the respondent, Helps, had failed to honour a guarantee made in relation to a debt owed by a third party. The central legal issue before the court was whether the guarantee provided by Helps was valid and enforceable, and if so, whether Helps had indeed breached it.

The court was required to examine the terms of the guarantee agreement to determine its enforceability. Key considerations included whether the guarantee was clearly expressed, whether it was intended to be a legally binding obligation, and whether Helps had the capacity to enter into such an agreement. Additionally, the court had to establish if the conditions precedent to the enforcement of the guarantee had been met, such as the default by the primary debtor. The court also needed to assess whether there had been any conduct by Helps that might discharge the guarantee, such as an accord and satisfaction or a novation.

The court found that the guarantee was valid and enforceable, as it was clearly expressed and met all the necessary criteria for enforceability. The conditions precedent were met, and there was no evidence of any conduct by Helps that would discharge the guarantee. The court concluded that Helps had indeed breached the guarantee by failing to pay the debt as required. Consequently, the appeal was dismissed, and the original decision in favour of Print National was upheld. The court ordered Helps to pay the outstanding amount owed under the guarantee, along with interest and costs.

Orders