WFM Motors Pty Limited v Bar M Pty Limited [2022] NSWSC 1500

Supreme Court New South Wales

Medium Neutral Citation: WFM Motors Pty Limited v Bar M Pty Limited [2022] NSWSC 1500 Hearing dates: 16, 17, 20, 21 September; 14 December 2021 Decision date: 04 November 2022 Jurisdiction: Equity Before: Kunc J Decision: Judgment for plaintiff; cross-claim dismissed Catchwords: GUARANTEE AND INDEMNITY – Contract of guarantee – Enforcement – Factors affecting validity of guarantee – Unconscionability – Unjust contracts – Statute CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Unjust CONSUMER LAW – Unconscionable conduct – In connection with goods or services – In connection with financial services – Unconscionable conduct within the meaning of the unwritten law – Distinction between unconscionable conduct within the unwritten law and statutory unconscionability – Meaning of "unconscionable conduct" – Australian Securities and Investment Commission Act 2001 (Cth) EVIDENCE – Death of a witness – Weight to be given to evidence where witness died before cross-examination completed Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) Evidence Act 1995 (NSW) Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (NSW) Cases Cited: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 Galati v Deans [2021] NSWSC 1094 Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343 Manly Council v Byrne [2004] NSWCA 123 Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 Marsden v Amalgamated Television Services Pty Limited [2001] NSWSC 510 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153 Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Williams v Commonwealth Bank of Australia [2013] NSWSC 335 Category: Principal judgment Parties: WFM Motors Pty Ltd (Plaintiff/Cross-Defendant) Bar M Pty Ltd (First Defendant) Walter Toppi (appointed by order of the Supreme Court of NSW to represent the estate of the late Giovanna Toppi) (Second Defendant/Cross-Claimant) Paola Toppi (Third Defendant) Representation: Counsel: PR Jammy (Plaintiff/Cross-Defendant) NJ Kidd SC (Defendants/Cross-Claimant) Solicitors: HWL Ebsworth (Plaintiff) Beazley Lawyers (First and Third Defendants) Levitt Robinson Solicitors (Second Defendant/Cross-Claimant) File Number(s): 2020/267822 Publication restriction: Nil