Willis & Bowring v Ziade Investments No. 2 & 2 Ors [2005] NSWSC 952

New South Wales Supreme Court

CITATION : Willis & Bowring v Ziade Investments No. 2 & 2 Ors [2005] NSWSC 952

HEARING DATE(S) : 29, 30, 31, August 2005 & 1, 5 September 2005.

JUDGMENT DATE : 23 September 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : White J

DECISION : 1. Order that the plaintiff bring in short minutes of order in relation to its statement of claim and the fourth cross-claim in accordance with these reasons; 2. dismiss the cross-claim of the third cross-claimant to the second cross-claim with no order as to costs.

CATCHWORDS : MORTGAGES - Claim for money owing under guarantees - Application for writ of possession for mortgaged land - Cross-claim seeking to set aside guarantees of loan obligation - Whether breach of loan contract discharged sureties - Allegation that lender was obliged to lend on terms other than the written contract - Loan contract construed - Whether advice given to wife allows lender to enforce guarantee under principles of Garcia v National Australia Bank Ltd - Whether otherwise unconscionable for lender to enforce guarantees - Held that plaintiff could enforce guarantees.

Bankruptcy Act 1966 (Cth) LEGISLATION CITED : Corporations Act 2001 (Cth)

Garcia v National Australia Bank Ltd (1998) 194 CLR 395 Fitzgerald v Masters (1956) 95 CLR 420 CASES CITED : Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Yerkey v Jones (1939) 63 CLR 649

Willis & Bowring Mortgage Investments Ltd PARTIES : v Ziade Investments No. 2 Pty Ltd & 2 Ors

FILE NUMBER(S) : SC 50165/04

Plaintiff: C Harris COUNSEL : 2nd Defendant: In Person 3rd Defendant: M B Duncan