Sisic v Krpo - [2008] NSWSC 1086

CITATION: Sisic v Krpo [2008] NSWSC 1086

HEARING DATE(S): 10 October 2008

JUDGMENT DATE :
22 October 2008

JURISDICTION: Equity Division

JUDGMENT OF: Ward J at 1

DECISION: Statement of claim dismissed.

CATCHWORDS: GUARANTEE AND INDEMNITY - whether principal obliged to reimburse or indemnify guarator pursuant to implied term of guarantee or implied contract - whether express request that guarantee be provided - no express or implied request found - no obligation to reimburse or indemnify on claim as pleaded - PROCEDURE - pleading - whether absence of plea re legal consequence of material facts pleaded precluded claim based on implied obligation outside guarantee - HELD that it did not

CATEGORY: Principal judgment

CASES CITED: Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89
In re A Debtor [1937] Ch 156
In re Vandervell’s Trust (No 2) [1974] Ch 269
Israel v Foreshore Properties Pty Ltd (In Liq) (1980) 30 ALR 631
Manzo v 555/255 Pitt Street Pty Limited (1990) 21 NSWLR 1

TEXTS CITED: O'Donovan and Phillips: Modern Contract of Guarantee (4th ed) at 12-100

PARTIES: Fahrudin Sisic (Plaintiff)
Adnan Krpo (Defendant)

FILE NUMBER(S): SC 3737 of 2007

COUNSEL: D J Hand (Plaintiff)
J R Young (Defendant)

SOLICITORS: Hunt and Hunt (Plaintiff)
Cumberland Frank Commercial & Litigation Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

WEDNESDAY 22 OCTOBER 2008.

3737/07 FAHRUDIN SISIC V ADNAN KRPO

JUDGMENT

1 In these proceedings the plaintiff, Mr Fahrudin Sisic, claims from the defendant, Mr Adnan Krpo, reimbursement of or an indemnity in relation to moneys paid by Mr Sisic under a contract of guarantee and indemnity (“Guarantee”) between Mr Sisic and Westpac Banking Corporation (“Westpac”) to secure borrowings under a business finance agreement entered into between Mr Krpo and Westpac.

2 It does not appear to be disputed, although Mr Krpo made no admissions in his defence in this regard, that Westpac made demand on Mr Sisic under the Guarantee in September 2006 and that on or about 19 March 2007 Mr Sisic paid the sum of $174,532.22 to Westpac (being the principal outstanding plus other charges and interest).

3 Mr Sisic’s claim, as pleaded, is that, in the premises set out in the statement of claim, it was an implied term of the Guarantee entered into by him with Westpac that Mr Krpo was obliged to reimburse or indemnify him for any moneys paid out to Westpac under the Guarantee.

4 The basis on which such an obligation is said to arise is, in essence, that Mr Sisic entered into the Guarantee at the express request of Mr Krpo. The making of such a request is denied by Mr Krpo.

5 The critical question for me to determine, on the case as pleaded, is whether as a matter of fact, a request was made by Mr Krpo for Mr Sisic to provide the Guarantee.

Background

6 For some time prior to July 2004 Mr Sisic and Mr Krpo had a…

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 Sisic v Krpo

Details

AGLC: Sisic v Krpo [2008] NSWSC 1086
Case: [2008] NSWSC 1086
Decision Date: 22 October 2008

CaseChat Overview and Summary

Sisic v Krpo involved a dispute over a guarantee and indemnity arrangement. The plaintiff, Sisic, sought reimbursement from the defendant, Krpo, for amounts paid under a guarantee. The case was heard in the Federal Court of Australia. The central issue was whether Krpo was obliged to reimburse or indemnify Sisic under an implied term of the guarantee or an implied contract. Additionally, the court had to determine if there was an express request for the guarantee to be provided and whether the absence of a plea regarding the legal consequence of the material facts precluded the claim based on an implied obligation outside the guarantee.

The court examined the guarantee and found no express or implied request for Krpo to provide the guarantee. It held that the absence of a plea regarding the legal consequence of the material facts did not preclude the claim based on an implied obligation outside the guarantee. The court reasoned that the nature of the guarantee and the circumstances surrounding its provision did not support an implied obligation for reimbursement or indemnity. Consequently, the court found that there was no obligation for Krpo to reimburse or indemnify Sisic on the claim as pleaded. The court's decision was grounded in the specific terms of the guarantee and the absence of any express or implied request for Krpo to provide the guarantee. The court also noted that the failure to plead the legal consequence did not bar the claim for an implied obligation outside the guarantee.

Orders