Kennard, C.C. & Anor v. AGC (Advances) Ltd & Ors [1986] FCA 519

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CATCHWORDS

TRADE PRACTICES - misleading statements as to effect of mortgage - whether as to future - remedy - variation ordered.

GUARANTEE - substance not form - document creating primary liability - obligation to disabuse guarantor of misapprehension as_ to

effect of document.

MISTAKE - unilateral - what must be shown to justify rectification.

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Trade Practices Act, s.52

Christopher Campbell Kennard & Anor. v. A.G.C. (Advances) Limited & Ors. QLD G67 of 1986

PINCUS J. BRISBANE 12 NOVEMBER 1986

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IN THE FEDERAL COUPT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G67 of 86

GENERAL DIVISION )

BETWEEN: CHRISTOPHER CAMPBELL KENNARD and MARGARET BETH KENNARD

Applicants

AND: A.G.C. (ADVANCES) LIMITED

First Respondent

AND: SYDNEY FRANCIS DEMPSTER and KRYSTYNA EMILIA DEMPSTER

Second Respondents

AND: A.G.C. (ADVANCES) LIMITED

Cross Claimant

AND: CHRISTOPHER CAMPBELL KENNARD and MARGARET BETH KENNARD

Cross Respondents

PINCUS J. 12 NOVEMBER 1986

REASONS FOR JUDGMENT

This is a claim under s.52 of the Trade Practices Act

with alternative claims under the general law. The evidence and

issues are mentioned in some detail below, but it is convenient to

begin with a brief account of the matter.

The applicants and their friends the Dempsters executed a second mortgage at the end of 1985, making them all liable for a

sum in excess of $1 million, which would otherwise have been due

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by the Dempsters only. The mortgage was one of a number of securities given to the respondent, a well-known finance company, in the course of the Dempsters consolidating their debts. Even on tne respondent's evidence, the applicants' having made themselves liable on the personal covenant seems clearly to have been, at