HARPLEY NOMINEES PTY LTD & ANOR v JEANS & ANOR [2006] NSWCA 176

New South Wales Court of Appeal

CITATION: HARPLEY NOMINEES PTY LTD & ANOR v JEANS & ANOR [2006] NSWCA 176 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 March 2006, 28 March 2006

JUDGMENT DATE: 30 June 2006

JUDGMENT OF: Handley JA at 1; Beazley JA at 2; Basten JA at 3

DECISION: (1) Appeal allowed; (2) Set aside the declarations and orders made in the Equity Division on 13 August 2004 in proceedings no. 50104 of 2003; (3) In lieu thereof, order that the summons filed on behalf of the First Respondent (John Anthony Jeans) be dismissed with costs; (4) Order that the cross-claim filed on behalf of the Second Respondent (John Richard Bruce) be dismissed, with no order as to costs; (5) Order that the First Respondent pay the Appellants' costs of the appeal; (6) Grant the First Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the appeal

CATCHWORDS: EQUITY - claim by co-guarantor to equitable contribution for any amount paid in excess of 50% of the debt - guarantor seeking relief but with no prospect of paying his 50% of debt - co-guarantor bankrupt - appropriateness of granting declaratory relief in such circumstances

LEGISLATION CITED: Bankruptcy Act 1966 (Cth), ss 82, 153

Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 Bond v Larobi Pty Ltd (1992) 6 WAR 489 Cockburn v GIO Finance Ltd (No. 2) [2001] 51 NSWLR 624 Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2003] FCA 268 CASES CITED: Mahoney v McManus (1981) 180 CLR 370 McLean v Discount and Finance Ltd (1939) 64 CLR 312 Re Anderson-Berry (1928) Ch 290 Wolmershausen v Gullick (1893) 2 Ch 514 Woolmington v Bronze Lamp Restaurant Pty Ltd [1984] 2 NSWLR 242