Barwick v Latec Investments Ltd [1966] HCA 54

High Court of Australia McTiernan, Taylor, Menzies, Windeyer and Owen JJ. Barwick v Latec Investments Ltd [1966] HCA 54

ORDER Appeal allowed with costs. Order of Supreme Court set aside. In lieu thereof order that judgment in demurrer be entered for defendant on the first and second pleas.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 7 McTiernan J., Taylor J., Menzies J. and Owen J.

This is an appeal by leave from an order of the Supreme Court entering judgment in demurrer for the plaintiff company, the present respondent, in an action brought by it against the present appellant. The demurrer was to two pleas filed by the defendant and in the Supreme Court and on this appeal the arguments proceeded upon the basis that the facts were as follows, although all of them do not appear from the pleadings.

The plaintiff was at all relevant times a registered money-lender. In May 1958 it lent to a company, Glen Shee Pty. Ltd., the sum of £10,000 repayable with interest by instalments. To secure the repayment of the loan and interest thereon the plaintiff took from the borrower an equitable mortgage and a "mortgage of lease". In consideration of the making of the loan to Glen Shee Pty. Ltd. the defendant at the time of the making of the loan entered into a contract of guarantee with the plaintiff by which he promised to repay on demand the loan and interest thereon should Glen Shee Pty. Ltd. make default in repaying the same. At the same time he gave the plaintiff, by way of collateral security, a promissory note for £14,000 payable on demand. Glen Shee Pty. Ltd. made default in repayment of the loan and the necessary demands were made upon the defendant. He failed to comply with them and this action was commenced after 7th December 1961, that being the date when Act No. 50 of 1961 (to which we will refer later) came into force, an Act which added, inter alia, s. 3B to the Money-lenders and Infants Loans Act, 1941-1948 N.S.W..