COMANOS v CITIBANK LTD [1997] NSWCA 71

COMANOS vy CITIBANK LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA

10 September 1997

Mason P. The appellants were sued by the respondent ('Citibank') as the guarantors of the obligations of a family company, George Comanos & Associates Pty Ltd pursuant to a Leasing Agreement ('the Lease'). The Lease (which related to a Porsche 944S Coupe motor car) was for a term of 48 months. On my reading of the documents, the monthly rental was $2,386.62, and 20 of the 48 instalments were received before the car was returned to a dealer nominated by Citibank. Nevertheless, the trial and appeal were conducted on the basis that the monthly rental was $2,386.32, with 24 instalments being paid. Given that the Court has to grapple with larger discrepancies and confusions, I am content to proceed on the basis of 24 instalments of $2,386.32 being outstanding. The Lease stipulated an agreed residual value of $62,550.

At trial the appellants were represented by one of their number, Mr George Comanos. Several issues were litigated that are no longer pressed. These included claims that no moneys were owing to Citibank (as distinct from a related company Citicorp Australia Ltd); that the appellants had been released from their obligations at the time when the car was surrendered; and that Citibank had sold the vehicle at an undervalue at a sale which had been unreasonably delayed. On each of these matters the learned trial judge (Cramer Roberts ADCJ) found in favour of Citibank. These points are no longer in dispute.

One point that is pressed on appeal, but which can be disposed of summarily, is the submission that the Guarantee signed by the appellants does not relate to the company's obligations under the Lease itself. It was contended that the Guarantee covered any agreement following the Lease, but not the Lease itself. There is no merit in this point. The Guarantee recites the request by the guarantors to Citibank that it 'enter into a transaction with [the company] of the kind described [in the Schedule to the Guarantee].' That Schedule refers to the Lease. Clause 1.A of the Guarantee embodies a joint and several guarantee by the appellants to pay all moneys which the company 'may be or hereafter become liable to pay... pursuant to any agreement which results from your entering into the transaction or arising from the breach thereof...' It is clear that this embraces moneys becoming due under the Lease itself.