Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Hearing dates: 4 May 2011 Decision date: 20 June 2011 Before: Giles JA at [1]; Hodgson JA at [2]; Campbell JA at [3] Decision: 1. Appeal dismissed with costs. 2. The stay of orders made in the court below is dissolved. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: GUARANTEE - Construction - whether bank owed guarantors a contractual obligation to maintain confidentiality - whether express contractual obligation of confidentiality

GUARANTEE - Construction - whether implied contractual obligation of confidentiality - term implied in law - obligation of confidentiality implied into contract between banker and customer but not into contract between banker and guarantor

GUARANTEE - Construction - whether implied contractual obligation of confidentiality - term implied in fact - test from BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 not satisfied - obligation of confidentiality not necessary for business efficacy nor so obvious that it goes without saying

GUARANTEE - Construction - whether contractual obligation of confidentiality was a condition, such that breach gave rise to right to terminate - analysis of the reasoning in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 - whether mere possibility of detriment to the guarantor is enough to bring about discharge of the guarantee - effect of provision that guarantor's obligations are unconditional and not affected by anything that would otherwise release the guarantor