NSW Caselaw
Reported Decision : (2006) Aust Contract Reports 90-243
New South Wales Court of Appeal
CITATION: CIT CREDIT PTY LTD v Blayn Norman KEABLE [2006] NSWCA 130
HEARING DATE(S): 11 May 2006
JUDGMENT DATE: 25 May 2006
JUDGMENT OF: Spigelman CJ at 1; Giles JA at 90; Gzell J at 91
DECISION: 1 Appeal allowed; 2 The Respondent's cross claim of 31 May 2004 is dismissed; 3 Judgment for the Appellant in the sum of $424,498.41; 4 The Respondent to pay the Appellant's costs of the trial and of the appeal; 5 The Respondent to have a certificate under the Suitors' Fund Act if otherwise entitled.
CATCHWORDS: TRADE PRACTICES – Unconscionable conduct – Whether Appellant "delegated" responsibility for execution of guarantee – Absence of disadvantage or special disability on the part of a prospective guarantor – Trade Practices Act 1975, s51AC. - CONTRACTS – Unjust contracts – Weight accorded to failure to implement scheme for certification that potential guarantors obtain legal advice – Relevant time for assessment of "unjustness" – Contracts Review Act 1980, s7. - CONTRACTS – Unjust contracts – Whether "unfair tactics" used – Where guarantor failed to read guarantee – Absence of disadvantage or disability on the part of a prospective guarantor – Contracts Review Act 1980, s9(2)(j).
LEGISLATION CITED: Trade Practices Act 1974 (Cth): s51AC, s84(2), s87 Contracts Review Act 1980 (NSW): s7, s9(2)(j)
ACCC v 4WD Systems Pty Ltd (2003) 200 ALR 491 Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 Barclay's Bank v O'Brien [1994] 1 AC 180 Burt v Australian and New Zealand Banking Group Ltd (1994) ATPR (Digest) 46-123 Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 CASES CITED: HG & R Nominees Pty Ltd v Fava [1997] 2 VR 368 Lisciandro v Official Trustee in Bankruptcy [1995] ATPR 41-436 Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 NMFM Property Pty Ltd v CitiBank Ltd (2000) 107 FCR 270 Perpetual Trustee Company Pty Ltd v Khoshaba [2006] NSWCA 41 Toll (FGCT) Pty Ltd v Alpha Pharm Pty Ltd (2004) 79 ALJR 129 Wilton v Farnworth (1948) 76 CLR 646
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