Stringer v Abbotsleigh Properties Pty Limited

CITATION:	Stringer v Abbotsleigh Properties Pty Limited [2008] NSWDC 366
HEARING DATE(S):	5 June 2008
JUDGMENT DATE:	23 July 2008
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Verdict for the plaintiff against the second and third defendants for $759,630.12 together with interest. 2. The second and third defendants are to pay the plaintiff’s costs of the proceedings
CATCHWORDS:	CONTRACT - guarantee - the common intention of the parties objectively viewed
CASES CITED:	Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 at [71] – [74] Gardiner v Agricultural and Rural Finance Pty Limited [2007] NSWCA 235 at [11] – [13] Integrated Computer Services Pty Limited v Digital Equipment Corp (Australia) Pty Limited (1988) 5 VPR [97326] Kooee Communications Pty Limited v Primus Telecommunications Pty Limited [2008] NSWCA 5 Ormwave Pty Limited v Smith [2007] NSWCA 210 at [68] Pacific Carriers Limited v BNP Paribas [2004] HCA 35 at [22] Peppers Hotel Management Pty Limited v Hotel Capital Partners Limited [2004] NSWCA 114 at [69] Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 at [40], [42] - [47]
PARTIES:	Norman Keith Stringer (Plaintiff) Stringer v Abbotsleigh Properties Pty Limited (First Defendant) Joseph Prestia (Second Defendant) Noble Capital Pty Limited (Third Defendant)
FILE NUMBER(S):	5013/06
COUNSEL:	Mr L Gor (Plaintiff) Mr J Dupree (Defendants)
SOLICITORS:	Bransgroves (Plaintiff) Russo & Partners (Defendants)

JUDGMENT

The proceedings and the issues to be determined

1. Pursuant to a written Loan Agreement (Exhibit A) made on 2 May 2005 Mr Stringer advanced $200,000 to Abbotsleigh Properties Pty Limited by way of a loan. The loan was not repaid by the due date and remained unpaid, so Mr Stringer commenced these proceedings for recovery of the principal loan and interest thereon. Summary judgment was given in his favour against Abbotsleigh Properties by Judge Finnane on 2 May 2007. That company has no assets and has not met the judgment or any part of it. Mr Stringer therefore, has failed to recover any of the loan or the interest thereon, which is considerable.

2. The dispute before me for determination arises out of allegations by Mr Stringer that the second and third defendants (Joseph Prestia and Noble Capital Pty Limited), who were parties and signatories to the Loan Agreement of 2 May 2005, are liable to him in respect of the loan. His claim is put on alternative bases (see the Amended Statement of Claim). The primary allegation is that Mr Prestia and Noble Capital agreed to personally guarantee the loan and any unpaid interest thereon. Alternatively, it was alleged that Mr Prestia and Noble Capital agreed to provide signed written guarantees in respect of the loan and any unpaid interest thereon, but have failed to do so. By way of further alternative it was alleged that Mr Prestia and Noble Capital agreed to cause an amount of $160,000 to be paid to Mr Stringer by the Bank of Western Australia, but failed to do so.

3. Mr Prestia and Noble Capital deny…