NSW Caselaw
Reported Decision: (2007) ATPR 42-183
New South Wales Court of Appeal
CITATION: CANON AUSTRALIA PTY LTD v PATTON [2007] NSWCA 246 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 3 August 2007
JUDGMENT DATE: 14 September 2007
JUDGMENT OF: Basten JA at 1; Campbell JA at 9; Harrison J at 70
(1) Appeal allowed. (2) Set aside the orders made in the court below. DECISION: (3) In lieu thereof, order that judgment be entered for the Appellant against the First and Second Respondents in the sum of $175,869.48. (4) Order that interest be paid on that amount at the rate prescribed from time to time by Schedule 5 Uniform Civil Procedure Rules 2005 from 8 December 2006. (5) First and Second Respondents to pay the costs of the appeal. (6) First and Second Respondents to pay the costs of the Appellant of the trial.
CATCHWORDS: TRADE PRACTICES – unconscionable conduct of creditor towards guarantor – failure to supply goods to trading company when debts outstanding – whether guarantor suffered
Australian Securities and Investments Commission Act 2001 (Cth), s 12CC Contracts Review Act 1980 (NSW), s 9 LEGISLATION CITED: Credit Act 1984 (NSW), s 147 Trade Practices Act 1974 (Cth), ss 6, 51AA, 51AB, 51AC Uniform Civil Procedure Rules 2005, Schedule 5
Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 Australia & New Zealand Banking Group v Karam (2005) 64 NSWLR 149 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226; (2005) 56 ACSR 131 Begley v Attorney General (NSW) (1910) 11 CLR 432 Ben Shipping Co v An Bord Bainne [1986] 2 All ER 177, 187 Bruns v Colocotronis ("The Vasso") [1979] 2 Lloyds Rep 412 Compania Sudamericana De Fletes SA v African Continental Bank Ltd ("The Rosarino") [1973] 1 Lloyds Rep 2 CASES CITED: Equiticorp Finance Ltd (In liq) v Bank of New Zealand (1993) 32 NSWLR 50 Gracechurch Holdings Pty Ltd v Breeze & Anor (1992) 7 WAR 518, 524 Hurley v McDonald's Australia Ltd (2000) ATPR 41-741 Interchase Corp Ltd (in liq) v FAI General Insurance Co Ltd [2000] 2 Qd 301 Pettman v Keble (1850) 137 ER 1067 Re Kitchin; Ex parte Young (1881) 17 Ch D 668 Sabemo Pty Ltd v de Groot (1991) 8 BCL 132 State Bank of NSW v Stenhouse (1997) Aust Torts Rep 81-423
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