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 42.35Cases 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 312Texts 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:
Solicitors:
Mr D C Price (plaintiffs/cross-defendants)
Shaddicks (plaintiffs/cross-defendants)
File Number(s): 2018/155580 Publication restriction: None
Judgment
A. INTRODUCTION
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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
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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
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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.
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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…
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- AGLC
- Trent v Bolton [2019] NSWDC 853
- Case
- [2019] NSWDC 853
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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