Barecall Pty Limited v David Hoban [2010] NSWCA 269

New South Wales Court of Appeal

CITATION: Barecall Pty Limited v David Hoban [2010] NSWCA 269 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 October 2010

JUDGMENT DATE: 12 October 2010

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 25; Handley AJA at 26

EX TEMPORE JUDGMENT DATE: 12 October 2010

1. Dismiss the appeal, subject to the following orders. DECISION: 2. Dismiss the application made by the third respondent for the adducing of fresh evidence with no order as to costs. 3. Direct the parties, through the appellant, to file an additional Orange Book containing the costs judgment, costs orders, and all parties' submissions on the appeal on costs, within seven days or such other extended time as the Court identifies if application be made. 4. Stand over the making of an order for costs of the appeal and of costs below until resolution of the appeal on costs.

CATCHWORDS: GUARANTEE AND INDEMNITY – enforceability – guarantee covenants in variation of lease – guarantees not signed by two of five guarantors - ESTOPPEL – estoppel by representation or convention – assurance that five personal guarantees would be executed – knowledge of solicitor that two guarantees not received imputed to client – no action taken by client with knowledge that assurance unfulfilled

LEGISLATION CITED: Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Chan v Cresdon Pty Ltd [1989] HCA 63; 168 CLR 242

Barecall Pty Limited ACN 060 527 095 (Appellant) David Hoban (First Respondent) PARTIES: Deon Russell Harvey (Second Respondent) Anthony Rossi (Third Respondent) Radoslav Spadina (Fourth Respondent) Jason Lussick (Fifth Respondent)