Lissa v Browne [2009] NSWSC 1050

New South Wales Supreme Court

CITATION : Lissa v Browne [2009] NSWSC 1050

HEARING DATE(S) : 28 September 2009

JUDGMENT DATE : 2 October 2009

JUDGMENT OF : Davies J

DECISION : (1) The appeal is upheld. (2) Set aside that part of the judgment of the Local Court of 14 December 2008 that found a verdict in favour of Zonie against Mr Lissa in the amount of $19,919 plus costs. (3) In lieu of the judgment of the Local Court direct a judgment in favour of Mr Lissa with Zonie to pay Mr Lissa's costs of the final hearing before the Local Court. (4) The Plaintiff is to pay the First Defendant's costs of these proceedings. (5) The Plaintiff is to pay 50% of the Second Defendant's costs of these proceedings. (6) Liberty to apply on 3 days notice.

CATCHWORDS : GUARANTEE AND INDEMNITY - discharge of surety - departure from terms of contract with surety - whether arrangement was guarantee or indemnity - whether the principle in Ankar Pty Ltd v National Westminster Finance applies to indemnities - whether obligation a condition or essential term - whether the condition breached by the party indemnified. COSTS - appeal from Local Court - appeal succeeds on ground not argued in court below - abandonment by appellant of original grounds of appeal - appropriate costs order.

Legal Profession Act 1987 LEGISLATION CITED : Local Court Act 2007 Uniform Civil Procedure Rules

CATEGORY : Principal judgment

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549 Ex parte Hauxwell (1888) 23 Ch.D 626 Heald v O'Connor [1971] 1 WLR 497 Hussey v Horne-Payne (1878) 23 Ch.D 670 CASES CITED : Re Perkins [1898] 2 Ch 182 Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889 Taylor v Sanders [1937] VLR 62 Total Oil Products (Australia) Pty Ltd v Robinson [1970] 1 NSWR 701 Yeoman Credit Limited v Latter [1961] 1 WLR 828