MORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD [1992] NSWCA 289

MORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 22 July 1992, 17 December 1992

[1992] NSWCA 289

GUARANTEE — personal obligation by husband and wife — wife's guarantee provided by husband as attorney — large debt — belated application to raise defences under Trade Practices Act — contest of representations made — held: (by maj): Appeal dismissed.

ANTI-DISCRIMINATION — wife — execution of guarantee — separate entitlements of — belated application for adjournment to raise defence under Contracts Review Act — appeal (by maj).

GUARANTEE — husband and wife — guarantee of debts of company — alleged promise that guarantee would never be called on — belated application by husband and wife for adjournment to raise defences under Trade Practices Act 1974 (Cth) s52A, Fair Trading Act 1987 and Contracts Review Act 1980 — adjournment refused by trial judge — appeal against (1) refusal of adjournment; and (2) determination that alleged representation had not been made as claimed — held: (1) (by the Court): Having regard to the determination by the trial judge that no such representation was made that the guarantee would never be called on, the determination of the substantive point could not be disturbed on appeal. Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 (HC) applied; (2) (by the Court): The refusal of the adjournment in the case of the defendant husband was not shown to have involved any error of principle or to have occasioned any substantial injustice so that the appeal by the husband upon that ground should be refused. GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 (CA); Adamopoulos and Anor v Olympic Airways SA and Anor (1991) 25 NSWLR 75 (CA) applied. Raybos Australia Pty Ltd and Anor vy Tectran Corporation Pty Ltd and Ors [No 4] (1986) 6 NSWLR 674 considered; (3) (by Mahoney and Meagher JJA; Kirby P dissenting): The challenge by the defendant wife of the refusal of the adjournment should also be dismissed as she was fully aware of the granting of the guarantee and of its general nature and contents and suffered no injustice by the refusal to permit her to raise a defence under the Contracts Review Act 1980. Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 referred to.