Trent v Bolton

[2020] NSWCA 268

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Trent v Bolton [2020] NSWCA 268

Hearing dates:

20 October 2020

Date of orders:

20 October 2020

Decision date:

26 October 2020

Before:

Basten JA at [1];
Macfarlan JA at [2];
Simpson AJA at [23]

Decision:

(1)   Refuse the application for leave to appeal from the judgment of the District Court.

(2)   Order that the applicants pay the respondents’ disbursements incurred in this Court.

Catchwords:

APPEALS – leave to appeal – assertion that primary judge erroneously relied on affidavits verifying pleadings as evidence – trial conducted with a “level of informality” and involved self-represented parties – findings of fact open to judge – no question of principle warranting a grant of leave

GUARANTEE AND INDEMNITY – rights of guarantor to contribution from co-guarantors – whether payments by guarantor to principal debtor made under guarantee or as a loan to principal debtor – Mahoney v McManus (1981) 180 CLR 370 – primary judge’s findings of fact capable of supporting his conclusion

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Delaney v Winn [2015] NSWCA 124

Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4

Mahoney v McManus (1981) 180 CLR 370; [1981] HCA 54

Category:

Principal judgment

Parties:

Bradley Trent (First Applicant)
Eraina Trent (Second Applicant)
Kenneth Bolton (First Respondent)
Pauline Shumack (Second Respondent)

Representation:

Counsel:
D C Price (Applicants)
Self-represented by Ms Shumack (Respondents)

Solicitors:
Shaddicks Lawyers (Applicants)

File Number(s):

2019/392878

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2019] NSWDC 853

Date of Decision:

11 December 2019

Before:

P Taylor SC DCJ

File Number(s):

2018/155580

Judgment

1. BASTEN JA: I agree with Macfarlan JA.

2. MACFARLAN JA: By summons filed on 9 March 2020 Mr Bradley Trent and Ms Eraina Trent sought leave to appeal against a decision of P Taylor SC DCJ dated 11 December 2019 ([2019] NSWDC 853). In their written submissions they confined their challenge to his Honour’s decision to reduce their claim by $21,500 to account for an offsetting claim of the present respondents, Mr Kenneth Bolton and Ms Pauline Shumack.

3. The following are my reasons for joining in this Court’s orders made on 20 October 2020 dismissing the application for leave to appeal and ordering the applicants to pay the respondents’ disbursements incurred in the proceedings in this Court (the costs order being limited to disbursements because the respondents were self-represented, as they had been at first instance).

4. In 2001 the applicants and respondents became shareholders of a company (AJ Roberts Removals and Storage Pty Ltd) which conducted a removals and storage business. Mr Trent and Mr Bolton worked for the company and were the directors. The company was funded by finance provided to it by the National Australia Bank. Each of the applicants and respondents provided guarantees and registered mortgages over their homes to the Bank.

5. In 2009 Mr Trent ceased employment…