Wanis v Lifestyle Residences Hobsons Bay Pty Ltd [2024] NSWSC 274

Supreme Court New South Wales

Medium Neutral Citation: Wanis v Lifestyle Residences Hobsons Bay Pty Ltd [2024] NSWSC 274 Hearing dates: 7 March 2024 Date of orders: 20 March 2024 Decision date: 20 March 2024 Jurisdiction: Common Law Before: Wright J Decision: (1) The answer to question (a), Is the plaintiff entitled to a declaration to the effect that, pursuant to the Deeds of Guarantee executed by each of the second and third defendants, they are jointly and severally liable to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Loan Agreement and the General Security Agreement? is: Yes. (2) The answer to question (b), Is the plaintiff entitled to judgment with costs against the second defendant and the third defendant, jointly and severally, pursuant to the Deeds of Guarantee executed by each of the second and third defendants for such amount as is owing to the plaintiff by the first defendant pursuant to the Loan Agreement or the General Security Agreement? is: Yes. (3) A declaration that, pursuant to the Deed of Guarantee executed by the second defendant on 8 March 2019 and the Deed of Guarantee executed by third defendant on 8 March 2019, each of those defendants is liable, jointly and severally with the other, to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Loan Agreement executed on 8 March 2019 and the General Security Agreement executed on 8 March 2019. (4) Judgment for the plaintiff against the second and third defendants, jointly and severally, in sum of $150,000.00. (5) Order (4) is without prejudice to the plaintiff's rights to claim further sums from the second and third defendants under the Deeds of Guarantee executed by each of the second and third defendants on 8 March 2019 in respect of other liabilities or obligations of the first defendant under the Loan Agreement executed on 8 March 2019 and the General Security Agreement executed on 8 March 2019 in addition to the liability to repay the principal sum advanced of $150,000.00. (6) The second and third defendants are to pay the plaintiff's costs of the notice of motion dated 2 May 2023 in addition to the costs already ordered to be paid by Schmidt AJ by order (2) made on 5 September 2023. (7) Otherwise, the notice of motion dated 2 May 2023 is dismissed. Catchwords: GUARANTEE AND INDEMNITY – deed of guarantee – whether deed of guarantee executed by guarantor – no point of principle EVIDENCE – evidence of execution of a document – execution of document not admitted by defendant – comparison by tribunal of fact of authentic signature of defendant with non-admitted signature – document found to have been executed by defendant Cases Cited: Adami v The Queen (1959) 108 CLR 605 Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Oil Basins Ltd v The Commonwealth (1993) 178 CLR 643 R v Hannes [2000] NSWCCA 503 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Singh v De Castro [2017] NSWCA 241 Unions NSW v New South Wales [2023] HCA 4 Wanis v Lifestyle Residences Hobsons Bay Pty Ltd [2023] NSWSC 1066 Ye v Chen [2022] NSWSC 494 Category: Principal judgment Parties: John Wanis (Plaintiff) Lifestyle Residences Hobsons Bay Pty Ltd (First Defendant) Peter Van (Second Defendant) Dale Harrison (Third Defendant) ACapital Finance No. 3 Pty Ltd (Fourth Defendant) Immuto Fleur Nominees Pty Ltd (Fifth Defendant) Representation: Counsel: A Munro (Plaintiff)