Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Segboer & Anor v A J Richardson Properties Pty Limited & Anor [2012] NSWCA 253 Hearing dates: 28 June 2012 Decision date: 14 August 2012 Before: Allsop P at [1]
Campbell JA at [2]
Sackville AJA at [3]Decision: 1. Appeal dismissed.
2. The appellants pay the first respondent's costs of the appeal.
3. The appellants pay the second respondent's costs of the appeal and the cross appeal on an indemnity basis.
4. The cross-appeal otherwise dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: BANKER AND CUSTOMER - bank guarantee - deed - whether guarantee "delivered" to beneficiary - whether physical delivery necessary - construction of guarantee - whether promise to pay contingent on return of original guarantee Legislation Cited: Corporations Act 2001 (Cth)
Conveyancing Act 1919
Fair Trading Act 1987Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57, 238 CLR 570
Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps [1985] VR 70
Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; 72 CLR 435
Beesly v Hallwood Estates Ltd [1961] Ch 105
Bowker v Burdekin (1843) 11 M & W 128, at 147; 152 ER 744
Doe d Garnons v Knight (1826) 5 B & C 671; 108 ER 250
Federal Commissioner of Taxation v Taylor [1929] HCA 13; 42 CLR 80
Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564
Hall v Bainbridge (1848) 12 QB 699; 116 ER 1032
Hall v Palmer (1844) 3 Hare 532; 67 ER 491
Hooker Industrial Developments Pty Ltd v Trustees of the Christian Brothers (1977) 2 NSWLR 109
Insurance Exchange of Australasia Group v Dooley [2000] NSWCA 159; 50 NSWLR 222.
Macedo v Stroud [1922] 2 AC 330
Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310
Peel Valley Mushrooms Ltd v Corporate Investment Australia Funds Management Ltd [2000] NSWSC 958; 35 ACSR 535
Re Way's Trusts (1864) 2 De G J & S 365; 46 ER 416
Scook v Premier Building Solutions Pty Ltd [2003] WASCA 263, 28 WAR 124
Stromdale & Ball Ltd v Burden [1952] Ch 223
Wood Hall Ltd v The Pipeline Authority [1979] HCA 21; 141 CLR 443
Xenos v Wickham (1867) LR 2 HL 296
Yu v Brownvalley Investments Pty Ltd [2010] NSWSC 253Texts Cited: A J Bradbrook, "The Delivery of Deeds in Victoria" (1981) 55 ALJ 267
J W Carter, Carter's Breach of Contract (2011)
R J A Morrison, H J Goolden, R F Norton, Norton on Deeds (2nd ed,…
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- Case
- [2012] NSWCA 253
- Decision Date
CaseChat Overview and Summary
The court was required to determine the proper construction of the bank guarantee deed, specifically whether physical delivery of the executed deed to the beneficiary was a necessary condition for its effectiveness. Furthermore, the court had to consider whether the promise to pay under the guarantee was contingent upon the beneficiary returning the original guarantee document to the bank.
The Court of Appeal held that physical delivery of the deed was not a prerequisite for its valid execution and enforceability. The court applied principles of contract law concerning the formation of deeds, emphasizing that the intention of the parties and the circumstances surrounding the execution were paramount. It was found that the guarantee was effective upon execution by the bank and that the obligation to pay was not contingent on the return of the original document, as this was not a condition precedent to payment stipulated in the deed.
Consequently, the appeal was dismissed. The appellants were ordered to pay the first respondent's costs of the appeal, and the appellants were also ordered to pay the second respondent's costs of the appeal and cross-appeal on an indemnity basis, with the cross-appeal otherwise dismissed.
Orders
Orders of the court
1. Appeal dismissed.
2. The appellants pay the first respondent's costs of the appeal.
3. The appellants pay the second respondent's costs of the appeal and the cross appeal on an indemnity basis.
4. The cross-appeal otherwise dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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