BYLANDER v MULTILINK [2001] NSWCA 53

New South Wales Court of Appeal

CITATION : BYLANDER v MULTILINK [2001] NSWCA 53 FILE NUMBER(S) : CA 40741/00 HEARING DATE(S) : 14 March 2001 JUDGMENT DATE : 14 March 2001

BYLANDER INTERNATIONAL CONSORTIUM (AUSTRALIA) PTY LIMITED & ORS PARTIES : v MULTILINK INVESTMENTS PTY LTD & ORS JUDGMENT OF : Handley JA at 1; Giles JA at 24; Heydon JA at 28

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9139/98 FILE NUMBER(S) : LOWER COURT Boland ADCJ JUDICIAL OFFICER :

COUNSEL : J M Patel (Appellants) J A Trebeck (Respondents) SOLICITORS : In person (Appellants) Bush Burke & Co (Respondents) CATCHWORDS : EQUITY - unconscionable conduct - guarantee - husband and wife CASES CITED: Yerkey v Jones (1939) 63 CLR 649 Garcia v National Australia Bank Limited (1998) 194 CLR 395 DECISION : Appeal allowed. Orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40741/00 DC 9139/98 HANDLEY JA GILES JA HEYDON JA

14 March 2001

BYLANDER INTERNATIONAL CONSORTIUM (AUSTRALIA) PTY LIMITED & ORS v MULTILINK INVESTMENTS PTY LIMITED & ANOR

EQUITY - unconscionable conduct - guarantee - husband and wife

A company controlled by a husband borrowed $275,000 for 30 days on the security of a guarantee by his wife and himself. The company failed to repay the loan and the wife was sued on her guarantee. The trial Judge held that a Yerkey v Jones (1939) 63 CLR 649 defence was not open on the pleadings but the defence failed in any event because she was not a volunteer. The wife appealed. HELD : (1) The Yerkey v Jones defence was open to the wife on the pleadings; (2) The wife, in giving the guarantee, was a volunteer; (3) The defence was established; (4) The fact that the wife was a director and shareholder in the borrower company, and that the loan funds were paid into the joint bank account of the husband and the wife before the bulk of the funds were paid out, almost immediately, for the husband's business purposes, did not prevent the wife being, in substance, a volunteer for the purposes of this defence. ORDERS (1) That the appeal be allowed;