Rhodes Bay Apartments Pty Ltd v Gay [2011] NSWSC 532

Supreme Court New South Wales

Medium Neutral Citation: Rhodes Bay Apartments Pty Ltd v Gay [2011] NSWSC 532 Hearing dates: 1-2 June 2011 Decision date: 06 June 2011 Jurisdiction: Equity Division Before: Biscoe AJ Decision: Judgment for the plaintiff for $335,464. Catchwords: GUARANTEE:-of an advance to a named person - whether advance made at all or to that person - whether lender's costs concerning the guarantor's lapsing notice relating to the lender's caveat are costs "relating to and in connection with...any variation or discharge" of a security within the meaning of those words in the loan agreement. Cases Cited: Burnes v Trade Credits Ltd (1981) 1 NSWLR 93 Lincolnshire Sugar Co Ltd v Smart [1937] AC 697 AJS Bank v Costello (1889) 6 WN (NSW) 94 Category: Principal judgment Parties: Rhodes Bay Apartments Pty Ltd (Plaintiff) Neil James Gay (Defendant) Representation: J Hyde (Plaintiff) M Klooster (Defendant) Mills Oakley Lawyers (Plaintiff) Cordato Partners (Defendant) File Number(s): 2008/00281704

Judgment 1The plaintiff, Rhodes Bay Apartments Pty Ltd, sues Neil James Gay as the guarantor of an advance of $200,000 by the plaintiff to Dimitrios Lazanis under a Deed of Loan dated 21 December 2007. The defence is that no advance was made or it was not made to Mr Lazanis but to a company of which he was a director, Zapman Investments Pty Ltd ( Zapman ). Zapman is not a party to these proceedings. 2The plaintiff also claims certain costs and expenses totalling $46,819.45 said to be owing under cl 9 of the Deed of Loan. The defence is that they do not fall within that clause and, in any case, there is insufficient evidence of those costs and expenses. 3Mr Lazanis was the second defendant. However, he is deceased and during the hearing the proceedings were discontinued against him.