Morgan v Rankin [2008] NSWDC 166

Pending Appeal :

New South Wales District Court

CITATION: Morgan v Rankin [2008] NSWDC 166

HEARING DATE(S): 11-12 August 2008

JUDGMENT DATE: 14 August 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. Verdict and judgment for the plaintiffs in the sum of $289,890.41. DECISION: 2. The defendants are to pay the plaintiffs' costs of the proceedings. This order is suspended until 22 August 2008 to allow either party to list the proceedings for further argument on the issue of costs. 3. The exhibits are returned.

CATCHWORDS: GUARANTEE - whether enforceable against directors of principal debtor in the light of subsequent transactions

CASES CITED: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Hancock v Williams (1942) 42 SR (NSW) 252

TEXTS CITED: O'Donovan, The Modern Contract of Guarantee, 3rd ed

Scott Anthony Morgan (First Plaintiff) Annette Frances Morgan (Second plaintiff) PARTIES: Phillip Norman Rankin (First defendant) Gregg Morgan (Second defendant) David Warne (Third defendant) Darren Van Aardt (Fourth Defendant)

FILE NUMBER(S): Newcastle 438/07

COUNSEL: M R Lawson (Plaintiffs) M J Dawson (First and third Defendants)

SOLICITORS: Thomas Mitchell (Plaintiffs) NOT Lawyers (First and Third Defendants)

JUDGMENT

1 Scott and Annette Morgan claimed to recover $200,000 and interest from the defendants Phillip Norman Rankin and David Warne. The parties named as second and fourth defendants are bankrupt and took no part in the proceedings.

2 The plaintiffs' claim was made on the basis of personal guarantees given by the defendants of repayment of the loan made by the plaintiffs to Morgan Building and Property Maintenance Pty Ltd in December 2004. The defendants were former directors of Morgan Building. The terms of the guarantee were set out in a document signed by the parties and dated 20 December 2004.