Breona Pty Ltd v Gosatti [2023] NSWSC 423

Supreme Court New South Wales

Medium Neutral Citation: Breona Pty Ltd v Gosatti [2023] NSWSC 423 Hearing dates: 11-13 April 2023 Date of orders: 26 April 2023 Decision date: 26 April 2023 Jurisdiction: Common Law Before: Fagan J Decision: (1) Verdict and judgment for the defendants. (2) The plaintiff is to pay the defendants' costs of the proceedings Catchwords: GUARANTEE AND INDEMNITY – contract of guarantee – where the rights of principal creditor under debt funding facility assigned – where assignee seeks enforcement against guarantors of principal debtor under the facility – where a transaction purportedly effected under the facility is not captured by its terms – guarantors not liable to indemnify the assignee for a transaction distinct from that which was the subject of the guarantee Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 Grizonic v Suttor [2011] NSWSC 471 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 Petelin v Cullen (1975) 132 CLR 355; [1975] HCA 24 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (2019) 99 NSWLR 317; [2019] NSWCA Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3 Category: Principal judgment Parties: Breona Pty Ltd (plaintiff) Michael Gosatti (first defendant) Lucy Gosatti (second defendant) Representation: Counsel: DF Elliott (plaintiff) Self-represented (defendants)