Toma v Taylor Square TT Pty Ltd - [2024] NSWCA 304

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Toma v Taylor Square TT Pty Ltd [2024] NSWCA 304
Hearing dates: 18 September 2024
Date of orders: 18 December 2024
Decision date: 18 December 2024
Before: Bell CJ at [1]; Ward P at [19]; Gleeson JA at [135]
Decision:
1.   Appeal allowed with costs.
2.   Set aside the orders made by Rees J on 9 August 2024 and in lieu thereof order that the claim for specific performance as against the fifth defendant be dismissed with costs and dispense with compliance as to the rules of service.
3.   Direct the appellant to file the amended notice of appeal within 7 days.
4.   Dispense with the filing requirement for the respondents’ notice of contention.

Catchwords:
GUARANTEE AND INDEMNITY – Construction Scope of liability of guarantor – Where contract for sale of land and underlying businesses not completed by purchasers – Where vendor sought order for specific performance as against guarantor – Where order for specific performance granted by primary judge - Whether guarantor liable to perform purchasers’ principal obligations – Appeal allowed

Cases Cited:
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Ankar Pty Ltd & Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15
Baeg v Wink Singh Pty Limited [2024] NSWSC 589
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309
Coast Securities No 9 Pty Ltd v Alabac Pty Ltd [1984] 2 Qd R 25
Fairborne Pty Ltd v Strata Store Noosa Pty Ltd [2009] QSC 250
House v King (1936) 55 CLR 499; [1936] HCA 40
Jowitt v Callaghan (1938) 38 SR (NSW) 512
Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 276 CLR 500; [2023] HCA 6
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25
McGuiness v Norwich and Peterborough Building Society [2012] 2 All ER (Comm) 265
Moschi v Lep Air Services [1973] AC 331
Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293
Socratous v Koo (1993) 6 BPR 97,448
Sunbay Projects Pty Ltd v PR Wieland Holdings Pty Ltd [2010] QSC 368
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11
Taylor Square TT Pty Ltd v Kinselas Pty Ltd (No 2) [2024] NSWSC 987
Taylor Square TT Pty Ltd v Kinselas Pty Ltd [2024] NSWSC 799
Wharf Street Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256

Texts Cited:
JW Carter, Carter’s Breach of Contract (2nd ed, 2018, LexisNexis)

Category: Principal judgment
Parties: Mark Toma (Appellant)
Taylor Square TT Pty Ltd (First Respondent)
Taylor Square Fund Pty Ltd (Second Respondent)
Representation:
Counsel:
MR Pesman SC with DA Allen
R Scruby SC with T Boyle
Solicitors:
Kekatos Lawyers (Appellant)
Arnold Block Leibler (Respondents)

File Number(s): 2024/300552
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme…

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.

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Details

Case: [2024] NSWCA 304
Decision Date: 18 December 2024

CaseChat Overview and Summary

The appeal in *Toma v Taylor Square TT Pty Ltd* concerned a vendor's attempt to enforce a contract for the sale of land and underlying businesses against a guarantor after the purchasers failed to complete the transaction. The primary judge had granted an order for specific performance against the guarantor. The appeal was brought by the guarantor, who argued they were not liable to perform the purchasers' principal obligations under the contract.

The central legal issue before the Court of Appeal was the scope of the guarantor's liability. Specifically, the court had to determine whether the guarantor's obligations extended to performing the purchasers' primary contractual obligations, such as completing the purchase of the land and businesses, or if their liability was confined to a secondary obligation, such as paying damages for breach of contract.

The Court of Appeal allowed the appeal, finding that the guarantor was not liable to perform the purchasers' principal obligations. The court reasoned that the guarantee, as construed, did not extend to requiring the guarantor to step into the shoes of the purchasers and complete the purchase. Instead, the guarantor's liability was limited to a secondary obligation arising from the purchasers' default. Consequently, the court set aside the primary judge's order for specific performance against the guarantor and dismissed the claim for specific performance.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders made by Rees J on 9 August 2024 and in lieu thereof order that the claim for specific performance as against the fifth defendant be dismissed with costs and dispense with compliance as to the rules of service.

3. Direct the appellant to file the amended notice of appeal within 7 days.

4. Dispense with the filing requirement for the respondents’ notice of contention.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Toma v Taylor Square TT Pty Ltd [2024] NSWCA 304
Hearing dates:	18 September 2024
Date of orders:	18 December 2024
Decision date:	18 December 2024
Before:	Bell CJ at [1]; Ward P at [19]; Gleeson JA at [135]
Decision:	1. Appeal allowed with costs. 2. Set aside the orders made by Rees J on 9 August 2024 and in lieu thereof order that the claim for specific performance as against the fifth defendant be dismissed with costs and dispense with compliance as to the rules of service. 3. Direct the appellant to file the amended notice of appeal within 7 days. 4. Dispense with the filing requirement for the respondents’ notice of contention.
Catchwords:	GUARANTEE AND INDEMNITY – Construction Scope of liability of guarantor – Where contract for sale of land and underlying businesses not completed by purchasers – Where vendor sought order for specific performance as against guarantor – Where order for specific performance granted by primary judge - Whether guarantor liable to perform purchasers’ principal obligations – Appeal allowed
Cases Cited:	Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 Ankar Pty Ltd & Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 Baeg v Wink Singh Pty Limited [2024] NSWSC 589 Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 Coast Securities No 9 Pty Ltd v Alabac Pty Ltd [1984] 2 Qd R 25 Fairborne Pty Ltd v Strata Store Noosa Pty Ltd [2009] QSC 250 House v King (1936) 55 CLR 499; [1936] HCA 40 Jowitt v Callaghan (1938) 38 SR (NSW) 512 Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 276 CLR 500; [2023] HCA 6 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 McGuiness v Norwich and Peterborough Building Society [2012] 2 All ER (Comm) 265 Moschi v Lep Air Services [1973] AC 331 Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293 Socratous v Koo (1993) 6 BPR 97,448 Sunbay Projects Pty Ltd v PR Wieland Holdings Pty Ltd [2010] QSC 368 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11 Taylor Square TT Pty Ltd v Kinselas Pty Ltd (No 2) [2024] NSWSC 987 Taylor Square TT Pty Ltd v Kinselas Pty Ltd [2024] NSWSC 799 Wharf Street Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256
Texts Cited:	JW Carter, Carter’s Breach of Contract (2nd ed, 2018, LexisNexis)
Category:	Principal judgment
Parties:	Mark Toma (Appellant) Taylor Square TT Pty Ltd (First Respondent) Taylor Square Fund Pty Ltd (Second Respondent)
Representation:	Counsel: MR Pesman SC with DA Allen R Scruby SC with T Boyle Solicitors: Kekatos Lawyers (Appellant) Arnold Block Leibler (Respondents)
File Number(s):	2024/300552
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme…