Trent v Bolton - [2019] NSWDC 853

District Court

New South Wales

Medium Neutral Citation: Trent v Bolton [2019] NSWDC 853
Hearing dates: 15, 16, 17 and 18 October 2019, further submission 22 October 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Judgment for the plaintiffs against the defendants in the sum of $32,537.53.
(2)   Cross-claim otherwise dismissed.
(3)   Any application in respect of a costs order must be notified by email to my associate by noon on Friday, 20 December 2019, and indicate the costs order sought.

Catchwords: GUARANTEE AND INDEMNITY — contract of guarantee —co-guarantors — entitlement to contribution – set-off
Legislation Cited: District Court Act 1973, s 134
Limitation Act 1969, s 14
Uniform Civil Procedure Rules 2005, r 42.35
Cases Cited: Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Lang v Le Boursicot (1993) 5 BPR 97,406
Mahoney v McManus (1981) 180 CLR 370
McLean v Discount & Finance Ltd (1939) 64 CLR 312
Texts Cited: JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015)
Category: Principal judgment
Parties: Bradley Trent (first plaintiff/first cross-defendant)
Eraina Trent (second plaintiff/second cross-defendant)
Kenneth Bolton (first defendant/first cross-claimant)
Pauline Shumack (second defendant/second cross-claimant)
Representation:
Counsel:
Mr D C Price (plaintiffs/cross-defendants)
Solicitors:
Shaddicks (plaintiffs/cross-defendants)

File Number(s): 2018/155580
Publication restriction: None

Judgment

A. INTRODUCTION

Bradley and Eraina Trent, and Pauline Shumack and her husband, Kenneth Bolton, were guarantors for the debts of AJ Roberts Removals and Storage Pty Ltd to the National Australia Bank. Mr and Mrs Trent paid an amount sought by NAB under the Guarantee, and seek half the amount paid as contribution from Mr Bolton and Ms Shumack.

B. JURISDICTION

No issue was raised about jurisdiction. The Court has jurisdiction under s 134(1)(h) of the District Court Act 1973. Additionally, there is authority that a claim by a guarantor against a co-guarantor under the same instrument is a claim at law for a debt. [1]
1. Lang v Le Boursicot (1993) 5 BPR 97,406 at 11,785 per McLelland J.

C. ISSUES

Ms Shumack appeared unrepresented. Although she had no legal training, she said that her husband, Mr Bolton, was unwell and sought to appear for him as well as for herself. Mr and Mrs Trent did not oppose this course and leave was granted.
The pleadings of Mr Bolton and Ms Shumack, and her affidavits, reflect that absence of legal training, making it difficult in many cases to ascertain precisely the nature of their claim or defence. The matter was conducted with a level of informality, where Mr and Mrs Trent did not object to much of the material relied on by Mr Bolton and Ms Shumack even though its relevance was often hard to discern. Ms Shumack was left to rely upon material which comprised pleadings, affidavits, submissions and argument, for what…

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 Trent v Bolton

Details

AGLC: Trent v Bolton [2019] NSWDC 853
Case: [2019] NSWDC 853
Decision Date: 11 December 2019

CaseChat Overview and Summary

Trent and Bolton were co-guarantors on a debt owed by a third party to a creditor. Following the creditor’s successful action against the principal debtor, Trent brought an action against Bolton seeking a contribution to the debt in accordance with their agreement and, alternatively, seeking a set-off based on Bolton’s failure to perform his obligations under the guarantee. Bolton resisted the claim and sought to have the cross-claim dismissed. The court had to decide whether the co-guarantors were entitled to a right of contribution under their agreement and, if so, whether the amount claimed was correct. The court also had to determine whether the set-off was valid.

The court found that the co-guarantors were indeed entitled to a right of contribution under their agreement. The court found that the amount of the contribution should be calculated based on the terms of the guarantee. The court found that the set-off was valid and should be applied to reduce the amount owed by Bolton. The court found that the plaintiffs were entitled to judgment against the defendants in the sum of $32,537.53. The cross-claim was dismissed. Any application for a costs order must be notified by email to my associate by noon on Friday, 20 December 2019, and indicate the costs order sought.

Orders

Orders of the court

(1) Judgment for the plaintiffs against the defendants in the sum of $32,537.53.

(2) Cross-claim otherwise dismissed.

(3) Any application in respect of a costs order must be notified by email to my associate by noon on Friday, 20 December 2019, and indicate the costs order sought.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Trent v Bolton [2019] NSWDC 853
Hearing dates:	15, 16, 17 and 18 October 2019, further submission 22 October 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the plaintiffs against the defendants in the sum of $32,537.53. (2) Cross-claim otherwise dismissed. (3) Any application in respect of a costs order must be notified by email to my associate by noon on Friday, 20 December 2019, and indicate the costs order sought.
Catchwords:	GUARANTEE AND INDEMNITY — contract of guarantee —co-guarantors — entitlement to contribution – set-off
Legislation Cited:	District Court Act 1973, s 134 Limitation Act 1969, s 14 Uniform Civil Procedure Rules 2005, r 42.35
Cases Cited:	Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 Lang v Le Boursicot (1993) 5 BPR 97,406 Mahoney v McManus (1981) 180 CLR 370 McLean v Discount & Finance Ltd (1939) 64 CLR 312
Texts Cited:	JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015)
Category:	Principal judgment
Parties:	Bradley Trent (first plaintiff/first cross-defendant) Eraina Trent (second plaintiff/second cross-defendant) Kenneth Bolton (first defendant/first cross-claimant) Pauline Shumack (second defendant/second cross-claimant)
Representation:	Counsel: Mr D C Price (plaintiffs/cross-defendants) Solicitors: Shaddicks (plaintiffs/cross-defendants)
File Number(s):	2018/155580
Publication restriction:	None