Di Bello & Anor v De Costi Seafoods (Holdings) Pty Ltd [2005] NSWCA 267

New South Wales Court of Appeal

Di Bello & Anor v De Costi Seafoods (Holdings) Pty Ltd [2005] NSWCA 267 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31/5/05

JUDGMENT DATE: 31 May 2005

JUDGMENT OF: Brownie AJA at 1; Santow JA at 28; Bryson JA at 36

DECISION: Grant leave to appeal. Direct that a notice of the appeal be filed within seven days. Allow the appeal. Set aside the judgment of the District Court, and in lieu thereof give judgment for the defendants with costs. Order the opponent to pay the costs of the claimants of the application for leave to appeal, and of the appeal.; The opponent should have a certificate under the Suitors Fund Act 1981 if otherwise qualified.

CATCHWORDS: Guarantee - Necessity for a contract relating to three parties: the creditor, the principal debtor, and the surety or guarantor - Principal and agent - ostensible authority - distinguish between the ostensible authority of a director of a company to bind the company, and the ostensible authority of that director to bind a fellow director - Estoppel - estoppel by conduct - implied or ostensible authority of A to bind B.

LEGISLATION CITED: Suitors Fund Act 1981

Hely-Hutchinson v Brayhead Ltd [1981] QB 549 at 583 CASES CITED: Essington Investments Pty Ltd v Regency Property Group [2004] NSWSC 375 Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 336 and 338

First Claimant Katia Di Bello (formerly Katia Cowdrill) Second Claimant PARTIES: David Cowdrill Respondent De Costi Seafoods (Holdings) Pty Ltd