Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51 Hearing dates: 13 February 2024 Date of orders: 13 March 2024 Decision date: 13 March 2024 Before: Ward P [1]; Stern JA [2]; Griffiths AJA [222]. Decision: (1) The appeal is dismissed. (2) Ground 1 of the cross-appeal is allowed and it is unnecessary to determine ground 2. (3) The orders made by the primary judge on 16 June 2023 are set aside and in lieu thereof it is ordered: 1. Judgment for the plaintiff against the defendants for $6.5 million. 2. Interest is payable from 16 June 2023 at the rates prescribed under s 101 of the Civil Procedure Act 2005 (NSW). 3. The defendants to pay the plaintiff's costs, as assessed or agreed. (4) The appellants to pay the respondent's costs of the appeal. Catchwords: GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – unconscionable conduct – whether primary judge erred in finding that respondent did not act unconscionably in procuring Deed of Guarantee and Indemnity – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – relief under Contracts Review Act 1980 (NSW) – whether primary judge erred in finding that clause of Deed of Guarantee and Indemnity was unjust – s 7 of the Contracts Review Act JUDGMENT AND ORDERS – interest – award of on judgment – rate applicable – where primary judge awarded interest at the rate of 10% as provided for in Deed of Guarantee and Indemnity – where pleaded claim was for interest at the prescribed rate under the Civil Procedure Act 2005 (NSW) – whether primary judge erred in finding that interest should accrue in accordance with terms of Deed of Guarantee and Indemnity Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BAB(9), 12BF, 12BG, 12BK, 12CB, 12CC Civil Procedure Act 2005 (NSW), ss 100, 101 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 21 Contracts Review Act 1980 (NSW), ss 4, 6, 7, 9 Surveillance Devices Act 2007 (NSW), s 7(3)(b)(i) Cases Cited: Asia Pacific International Pty Ltd v Dalrymple [2000] 2 Qd R 229; [1999] QSC 2004 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lopwell Pty Ltd v Clarke [2009] NSWCA 165 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Naegeli v Dalton and Schaeffer as Executors of the Estate of the late John Herman Schaeffer [2023] NSWSC 466 Naegeli v Dalton and Schaeffer as Executors of the Estate of the late John Herman Schaeffer (No 2) [2023] NSWSC 626 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Starceavich v Swart & Associates Pty Ltd [2006] NSWSC 960 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 399 ALR 409 Turner v Windever [2003] NSWSC 1147 Turner v Windever [2005] NSWCA 73 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Bettina Dalton and Joanne Alison Schaeffer as executors of the estate of John Herman Schaeffer (First Appellant/First Cross-respondent)