NSW Caselaw
Reported Decision: (2007) Aust Contract Reports 90-264
New South Wales Court of Appeal
CITATION: Bakarich & Ors. v. Commonwealth Bank of Australia [2007] NSWCA 169
HEARING DATE(S): 17, 18 and 19 April 2007
JUDGMENT DATE: 13 July 2007
JUDGMENT OF: Hodgson JA at 1; Santow JA at 160; Campbell JA at 161
DECISION: 1. Direct that any submissions by the appellants to the effect that there should be an enquiry be provided within 21 days. 2. If such submissions are provided within 21 days, direct that any submissions in response be provided within a further 21 days. 3. If the appellant does not provide submissions within 21 days, appeal dismissed with costs.
CATCHWORDS: CONTRACTS - Guarantees - Discharge of guarantors by dealings with principal debtor - Unjust contracts under the Contracts Review Act 1980 - Whether guarantees unjust because liability not limited to advances in compliance with lender's contract with the principal debtor - Relevance of "all monies" clause - Whether lender's conduct unconscionable - Whether Contracts Review Act, Schedule 1 cl.3, authorises orders protecting corporate co-guarantors from increased liability.
LEGISLATION CITED: Contracts Review Act 1980 (NSW) ss.4, 6, 7-9, 15, 17, Schedule 1
Ankar Pty Limited v National Westminster Finance (Australia) Limited (1987) 162 CLR 549 Beneficial Finance Corp v Karavas (1991) 23 NSWLR 256 Bridgewater v Leahy (1998) 194 CLR 457 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Commercial Bank of Australia v. Amadio (1983) 151 CLR 447 David Securities Pty. Limited v. Commonwealth Bank of Australia (1992) 175 CLR 353 Elders Rural Finance Limited v. Smith (1996) 41 NSWLR 296 CASES CITED: Elkofairi v Permanent Trustee Co. Limited [2002] NSWCA 413 Falinski v. Commonwealth Bank of Australia NSWCA 6/2/98 Garcia v National Australia Bank Limited (1998) 194 CLR 395 McKay v. National Australia Bank [1998] 4 VR 677 Perpetual Trustee Co. Limited v. Khoshaba [2006] NSWCA 41 State Bank of NSW v. Muir (1997) NSW Conv R 55-823 The Commonwealth v. Verwayen (1990) 170 CLR 394 Westpac Banking Corporation v Robinson (1993) NSWLR 668
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