Saral Investments Pty Ltd v Russell Charles Mansfield

[2010] NSWSC 428

CITATION:	Saral Investments Pty Ltd v Russell Charles Mansfield & Anor [2010] NSWSC 428
HEARING DATE(S):	05.05.10
JUDGMENT DATE :	5 May 2010
JUDGMENT OF:	Windeyer AJ
DECISION:	Rectification ordered. Judgment entered for plaintiff
CATCHWORDS:	EQUITY – rectification – claim for monies owing under rectified convertible note
CATEGORY:	Principal judgment
PARTIES:	Saral Investments Pty Ltd - plaintiff Russell Charles Mansfield - first defendant Nigel Charles Purves - second defendant
FILE NUMBER(S):	SC 09/287147
COUNSEL:	Ms I Kirkman solicitor - plaintiff no appearance - defendants
SOLICITORS:	Garland Hawthorn Brahe Solicitors - plaintiff no appearance - defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Windeyer AJ

5 May 2010

09/287147 Saral Investments Pty Ltd v Russell Charles Manfield & Anor

JUDGMENT ex tempore

1 His Honour: These proceedings involved, firstly, a claim that a convertible note document be rectified so as to delete the name of the holder of that note; namely, Saral Pty Ltd, and to insert in lieu the name Saral Investments Pty Ltd, in each case, as trustee for Alex Woerndle Superannuation Fund.

2 There has been no appearance to the statement of claim which has been served on the defendants and no defence has been filed.

3 The evidence makes it quite clear that the name of the holder of the note certificate was incorrect and that the proper holder was and is Saral Investments Pty Ltd.

4 In those circumstances, the order for rectification of the convertible note should be made.

5 There is also sought orders for rectification of guarantees given by and to the defendants to the company incorrectly named as Saral Pty Ltd. Once again, there is no doubt that this was a simple mistake and that the proper name is Saral Investments Pty Ltd, being the beneficiary under the deeds of guarantee.

6 It follows from this that the orders for rectification should be made.

7 There has been default under the terms of issue of the convertible note. The plaintiff company, Saral Investments Pty Ltd is entitled to immediate payment of the sum of $75,000, being the face value of the note.

8 In addition to that, a claim is made for interest from the date on which payment ought to have been made. Proper notice of demand has been given to the guarantors. The claim for interest is made out.

9 I make the orders sought in pars 1, 2, 3 and 4 of the relief claimed in the statement of claim and judgment for the plaintiff against the defendants jointly and severally for $93,119.71 comprising the principal of $75,000 and interest of $18,119.71.

10 The exhibits may be returned.

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