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Ryan v UPG 322 Pty Ltd

Ryan v UPG 322 Pty Ltd

Case [2023] NSWSC 1293 31 October 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293
Hearing dates: 23 October 2023; further written submissions ending 25 October 2023
Date of orders: 31 October 2023
Decision date: 31 October 2023
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [96]

Catchwords:
EQUITY – specific performance – contract for sale of land – corporate purchaser’s obligations guaranteed by sole shareholder and director – purchaser defaulted under contract – specific performance ordered against purchaser – whether decree available as against guarantor – whether decree against guarantor premature – order made against purchaser and guarantor jointly and severally requiring payment of purchase price on settlement
GUARANTEE AND INDEMNITY – actions to enforce guarantee – construction of guarantee – where guarantee of the performance of all obligations of the purchaser under the contract, including payment of all money payable – where guarantee given as principal

Legislation Cited:
Nil

Cases Cited:
Ascherson v Tredegar Drydock and Wharf Co Ltd [1909] 2 Ch 401
Caird Seven Pty Ltd v Attia (No 3) (2016) 92 NSWLR 457
Dougan v Ley (1946) 71 CLR 142
Eastern Counties Railway Co v Hawkes (1855) 5 HL Cas 331; 10 ER 928
Fairborne Pty Ltd v Strata Store Noosa Pty Ltd [2009] QSC 250
Ierino v Gutta (2012) 43 WAR 372
In re Anderson-Berry [1928] Ch 290
Jowitt v Callaghan (1938) 38 SR (NSW) 512
McGuinness v Norwich and Peterborough Building Society [2012] 2 All ER (Comm) 265
Moschi v Lep Air Services Ltd [1973] AC 331
Newcombe v Chapple (1985) 3 BPR 9391
Stimpson v Smith [1999] Ch 340
Sunbay Projects Pty Ltd v PR Wieland Holdings Pty Ltd [2010] QSC 368
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Thomas v Nottingham Incorporated Football Club Ltd [1972] Ch 596
Turner v Bladin (1951) 82 CLR 463
Wharf Street Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256

Texts Cited:
Cheshire & Fifoot Law of Contract, Seddon NC, Bigwood RA (LexisNexis, 12th Australian Edition, 2023)
Corbin on Contracts, Perillo JM (Vol 12, 2012, LexisNexis)
Heydon on Contract, Heydon JD (Lawbook Co, 2019)
Meagher, Gummow & Lehane’s Equity Doctrines & Remedies, Heydon JD, Leeming ML and Turner PG (5th ed, 2015, LexisNexis Butterworths)
The Principles of Equitable Remedies, Spry ICF (Lawbook Co, 9th ed, 2014)

Category: Principal judgment
Parties: Michael Carl Ryan (Plaintiff)
UPG 322 Pty Limited (First Defendant)
Bhart Bhushan (Second Defendant)
Representation:
Counsel:
A J McInerney SC/ E Dunlop (Plaintiff)
G A Sirtes SC/ M Sheldon (First and Second Defendants)
Solicitors:
McCabes Lawyers (Plaintiff)
Sparke Helmore Lawyers (First and Second Defendants)

File Number(s): 2023/268559
Publication restriction: Nil

JUDGMENT

In these proceedings the plaintiff seeks orders for specific performance of a contract for the sale of a parcel of land. The contract price is $39.5 million. The plaintiff is the vendor. The first defendant is the purchaser. The second defendant has guaranteed the purchaser’s obligations under the contract. The…

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 Ryan v UPG 322 Pty Ltd

Details

AGLC: Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293
Case: [2023] NSWSC 1293
Decision Date: 31 October 2023

CaseChat Overview and Summary

In the matter of Ryan v UPG 322 Pty Ltd, the primary dispute centred around the enforcement of a guarantee and indemnity agreement in relation to a contract for the sale of land. The buyer, who had entered into a contract with the seller for the sale of land, defaulted on the obligations under the contract. The contract stipulated that the obligations of the purchaser were guaranteed by the sole shareholder and director of the purchasing entity. The seller sought to enforce the guarantee against the guarantor and also to obtain specific performance against the purchaser. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues that the court was required to address included whether specific performance could be ordered against the purchaser and whether the decree for specific performance could be enforced against the guarantor. Additionally, the court needed to determine whether the decree against the guarantor was premature given the purchaser's default. The court also needed to consider the appropriate form of the order for payment of the purchase price, whether it should be against the purchaser alone, the guarantor alone, or both jointly and severally.

The court determined that specific performance could be ordered against the purchaser due to the clear terms of the contract and the purchaser's default. The court further held that the guarantee was valid and enforceable as a principal obligation, not merely as a secondary security. Given the purchaser's default and the guarantor's obligation to pay all moneys payable under the contract, the court concluded that the decree against the guarantor was not premature. The court ordered specific performance against both the purchaser and the guarantor jointly and severally, requiring payment of the purchase price on settlement. This ensured that the seller would receive the purchase price from either the purchaser or the guarantor, thereby securing the intended outcome of the contract.

Orders