JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [2004] NSWCA 475

New South Wales Court of Appeal

CITATION : JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [2004] NSWCA 475 HEARING DATE(S) : 27/05/2004; 22/06/2004 JUDGMENT DATE : 21 December 2004

JUDGMENT OF : Beazley JA; Tobias JA; McColl JA DECISION : 1. The parties to bring in agreed Short Minutes of Order reflecting these reasons by 4 February 2005.; 2. Liberty to apply on or before 4 February 2005 if the parties cannot reach agreement on the Short Minutes of Order.; 3. The respondents are to pay 90% of the second appellant's costs of the appeal.; 4. The respondents are to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.

CATCHWORDS : GUARANTEE - Joint and several guarantee - Subsequent agreement between creditor and one co-guarantor - Construction - Whether subsequent agreement a release or covenant not to sue - Release of one co-guarantor discharges other co-guarantors. - GUARANTEE - Joint and several guarantee - Express or implied obligation to maintain the security - Failure to maintain will release the guarantor - Guarantor not released where failure to perform obligation to maintain does not affect the nature of the obligation guaranteed. - EVIDENCE - Evidence of value - Reliance upon series of inter partes transactions as evidence of value - Trial judge erred in failing to accept transactions as evidence of value. - REASONS - Adequacy - Adoption of one party's submissions by trial judge. Codelfa Constructions Pty. Limited v. State Rail Authority (NSW) (1982) 149 CLR 337 Hancock v. Williams & Anor (1942) 42 SR (NSW) 252 Re Wolmerhausen (1890) 62 LT 541 CASES CITED : Smith v Wood [1929] 1 Ch 14 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Taylor v Bank of NSW (1886) 11 App Case 596 Walker v Bowry (1924) 35 CLR 48 Tass Alexander James (First Appellant) Janet Margaret James (Second Appellant) New South Head Nominees Pty. Limited (ACN 088 322 472) (Third Appellant) Surf Road Nominees Pty. Limited (ACN 087 719 060) (First Respondent) PARTIES : Chris Burke & Co. Pty. Limited (ACN 062 554 849) (Second Respondent) I.G. Martyn Real Estate Pty. Limited (ACN 001 210 304) (Third Respondent) WIT Investments Pty. Limited (ACN 087 762 856) (Fourth Respondent) Vincent Palmieri (Fifth Respondent) Terry Ian Wilson (Sixth Respondent) Andrew Peter Mortimer (Seventh Respondent) FILE NUMBER(S) : CA 40330/04 COUNSEL : C.R.C. Newlinds SC/A.P. Coleman (Appellants) T. Alexsis SC/K. Sainsbury (Respondents) SOLICITORS : The Argyle Partnership (Appellants) Pritchard Law Group (Respondents)