TYREE v CHALLENGE FINANCE LTD [1992] NSWCA 258

TYREE vy CHALLENGE FINANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 31 July 1992

[1992] NSWCA 258

Priestley JA On Monday, 27 July 1992 Mr Tyree appeared before me asking for thefollowing orders in an appeal he has initiated against a judgment which Rolfe J, on 10 April 1992, gave leave to be entered against him:

"1. That the April 10 judgement of Justice Rolfe be stayed. (or set aside).

2. That directions be given to the Respondent to supply the information requested in the Appellant's Notice to Produce dated March 26, 1992."

I indicated that I would not make O.2, for reasons I then gave.

I indicated also that on what Mr Tyree had put before me I saw no reason for granting a stay. Mr Tyree asked for time to put further submissions in writing. This request was granted, and the motion adjourned to today, 31 July 1992.

Mr Tyree delivered his further written submissions to me, and I have read them.

The proceedings before Rolfe J were brought by the plaintiff against Mr Tyree upon a guarantee he had signed. The guarantee was in evidence and proved. The amount owing was proved.

The single issue before Rolfe J was one in respect of which the onus of proof lay on Mr Tyree. His defence was that at the time of signing the guarantee a representative of the plaintiff had said things to him which meant that in the events that happened the plaintiff would not seek to enforce the guarantee against him.

The only proof suggested of this defence was Mr Tyree's account of the conversation with the plaintiff's representative. Rolfe J did not accept that a conversation in terms supporting the defence had taken place.

The materials put before me show that no other conclusion was open to Rolfe J. Apart from other reasons, what Mr Tyree said in cross-examination at p 30 of the transcript of evidence of 3 April 1992, and what he said in the course of making submissions to the judge at p 33 of the transcript of 3 April 1992, made the failure of his defence a certainty.