Naegeli v Dalton and Schaeffer as Executors of the Estate of the late John Herman Schaeffer [2023] NSWSC 466

Supreme Court New South Wales

Medium Neutral Citation: Naegeli v Dalton and Schaeffer as Executors of the Estate of the late John Herman Schaeffer [2023] NSWSC 466 Hearing dates: 3 – 5, 12, 19 April 2023 Date of orders: 04 May 2023 Decision date: 04 May 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff entitled to judgment as sought against the corporate defendants; plaintiff entitled to judgment against the first defendants as executors of Mr Schaeffer's estate for $500,000 together with interest at 10% per annum Catchwords: GUARANTEE AND INDEMNITY – contract of guarantee – unincorporated association – whether guarantee had contractual effect – whether creditor engaged in unconscionable conduct for the purposes of s 12CB of the Australian Securities and Investments Commission Act 2001 – whether operative term of guarantee unfair for the purposes of s 12BF of the Australian Securities and Investments Commission Act 2001 – whether guarantee an unfair contract for the purposes of the Contracts Review Act 1980 Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Australian Securities and Investments Commission Regulations 2001 (Cth) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Contracts Review Act 1980 (NSW) Evidence Act 1995 (NSW) Insolvency Practice Rules (Corporations) 2016 (Cth) Surveillance Devices Act 2007 (NSW) Cases Cited: ATL (Australia) Pty Ltd v Cui [2023] NSWSC 336 Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] FCA 515 Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited (2009) 75 NSWLR 42; [2009] NSWCA 186 Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd (2021) 284 FCR 424; [2021] FCAFC 33 Postorino v Encryption Technologies Corporation Pty Ltd & Ors [2015] FCCA 1634 Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13; [2014] FCAFC 70 Rathswohl v Court [2020] NSWSC 1490 Starceavich v Swart & Associates Pty Ltd [2006] NSWSC 960 Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246 Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145 Texts Cited: A Beattey and A Smith, Annotated National Credit Code (6th edition, 2019, LexisNexis) Category: Principal judgment Parties: Patrick Naegeli (Plaintiff) Bettina Dalton and Joanne Alison Schaeffer as Executors of the Estate of the late John Herman Schaeffer (First Defendant) Rasay Pty Limited (Second Defendant) The Footage Company Pty Ltd (Third Defendant) Representation: Counsel: C P O'Neill (Plaintiff) M K Condon SC with D C Price (Defendants)