GREEN SQUARE GARDENS P/L v METAL MANUFACTURES LTD [2000] NSWSC 1158

New South Wales Supreme Court

CITATION : GREEN SQUARE GARDENS P/L v METAL MANUFACTURES LTD [2000] NSWSC 1158 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4027/99 HEARING DATE(S) : 27-29/11/00 JUDGMENT DATE : 11 December 2000

Green Square Gardens P/L - Plaintiff/First Cross-defendant PARTIES : Metal Manufactures Ltd - Defendant/Cross-claimant James Sutton Harrison Jr - Second Cross-defendant JUDGMENT OF : Bryson J at 1

COUNSEL : J Svehla - Plaintiff and Cross-defendants G Seib - Defendant/Cross-claimant SOLICITORS : Hugh & Associates - Plaintiff and Cross-defendants Aitken McLachlan & Thorpe - Defendant/Cross-claimant CATCHWORDS : GUARANTEE - claim for declaration that moneys owed not secured by third party mortgage - claim that trading account and account service fee of third party secured by mortgage - non-compliance by creditor with agreed terms of credit as agreed between debtor and creditor - whether surety's obligations discharged - terms of trading account not established as agreed - departure not obviously unsubstantial - held, the surety was not liable and nothing was secured by the mortgage. - DEEDS - construction of deed of settlement relating to extension of credit facility - "entire agreement and understanding of the parties" over-rode earliler credit facility and personal guarantee. LEGISLATION CITED : Real Property Act 1900 s.57(2)(b) CASES CITED : Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 DECISION : See para 38

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

MONDAY 11 DECEMBER 2000