Zhong v Shield Resources Pty Ltd [2023] NSWSC 1611

Supreme Court New South Wales

Medium Neutral Citation: Zhong v Shield Resources Pty Ltd [2023] NSWSC 1611 Hearing dates: 4-8 December 2023 Date of orders: 18 December 2023 Decision date: 18 December 2023 Jurisdiction: Common Law Before: Fagan J Decision: 1 Judgment for the plaintiff against the first defendant for $1,151,645.06 plus interest on the said sum at the rate of 12% per annum from 21 September 2018 to the date of this judgment. 2 Judgment for the second defendant against the plaintiff. 3 Judgment for the third defendant against the plaintiff. 4 The cross-claim by the first and second defendants against the plaintiff is dismissed. 5 The first defendant is to pay the plaintiff's costs of the proceedings. 6 The plaintiff's to pay the costs of the proceedings of the second and third defendants. Catchwords: CONTRACT — breach — total failure of consideration — agreement for loan of a specified amount — whether entire contract — whether obligations of borrower under agreement unenforceable where part only of loan amount advanced REAL PROPERTY — whether contract contained agreement of a registered proprietor and that a caveat may be lodged — whether implied creation of a caveatable interest in land INSURANCE — rectification — loan agreement — whether mutual intention of parties creates a separate charge over real property GUARANTEE AND INDEMNITY — circumstances in which surety discharged — where creditor advanced less than the full amount to be loaned under the agreement that was guaranteed — whether the principle of Ankar Pty Ltd v National Westminster Finance applied — onus on principal creditor to prove that change of lending arrangement with borrower was not detrimental to guarantor Legislation Cited: Australian Consumer Law (Cth) Contracts Review Act 1980 (NSW) Cases Cited: Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 Corumo Holdings Pty Ltd v C Itoh Ltd (1991) 24 NSWLR 370 Croydon Gas Company v Dickinson (1876) 2 CPD 46 51 Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 Holme v Brunskill (1877) 3 QBD 495 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] NSWCA 65 Ta Lee Investment Pty Ltd v Antonios (2019) 19 BPR 39153; [2019] NSWCA 24 Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3 Category: Principal judgment Parties: Yuping Zhong (plaintiff) Shield Resources Pty Ltd (first defendant) Ying Guan (second defendant) Feng Ye (third defendant) Representation: Counsel: SJ Burchett (plaintiff) SA Lawrence (second defendant) D Parish (third defendant)