Jaafar v TUF (NSW) Glass Services Pty Ltd [2023] NSWSC 88

Supreme Court New South Wales

Medium Neutral Citation: Jaafar v TUF (NSW) Glass Services Pty Ltd [2023] NSWSC 88 Hearing dates: 9 February 2023 Date of orders: 17 February 2023 Decision date: 17 February 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. Grant leave to the plaintiff pursuant to s 40 of the Local Court Act 2007 to appeal on grounds 2 and 4 in the Amended Summons. 2. Uphold the appeal. 3. Vary the judgment entered by the Magistrate as follows: Judgment for the plaintiff in the sum of $13,552.18. 4. The defendant is to pay the plaintiff's costs of the appeal. 5. The defendant is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. Catchwords: APPEAL – from Local Court – ss 39 and 40 of Local Court Act 2007 (NSW) – defendant supplying materials to company – plaintiff sole shareholder and director of company – plaintiff signed Credit Agreement on behalf of company – defendant made claim for moneys payable on basis of signed personal guarantee of plaintiff – where Local Court found in favour of defendant for whole of its liquidated claim – determination of quantum – whether question of law or question of mixed fact and law raised – where Local Court accepted guarantee took effect retrospectively - error established by finding defendant entitled to full quantum of claim sought – appeal upheld in part ESTOPPEL – Anshun estoppel – whether necessary for creditor to join all guarantors in action against principal debtor – no error established in Local Court rejecting defence based on Anshun estoppel Legislation Cited: Local Court Act 2007 (NSW) ss 39, 40 Suitors' Fund Act 1951 (NSW) Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 45 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44, Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 Texts Cited: Nil Category: Principal judgment Parties: Abed Jaafar (Plaintiff) TUF (NSW) Glass Services Pty Ltd (Defendant) Representation: Counsel: M Elnajjar (Plaintiff) M Marnani (Defendant)