Supreme Court New South Wales Medium Neutral Citation: Calogo Bloodstock AG T/As Coolmore Australia v Clemenger [2011] NSWSC 1229 Hearing dates: 11 October 2011 Decision date: 11 October 2011 Jurisdiction: Equity Division - Commercial List Before: Rein J Decision: Judgment for the plaintiff against the second defendant Catchwords: EQUITY - co-guarantors - where directors guaranteed the debts of the company to which the plaintiff lent funds - plaintiff obtained judgment against the first defendant guarantor but no monies paid in satisfaction of the judgment debt - plaintiff now seeks judgment against the second defendant co-guarantor for the debt owed Legislation Cited: Contracts Review Act 1980 (NSW) Category: Principal judgment Parties: Calogo Bloodstock AG T/As Coolmore Australia (plaintiff) Robert Edward Clemenger (first defendant) Troy Hill (second defendant) Representation: M R Elliott (plaintiff) Norton Rose Australia (plaintiff) File Number(s): SC 2010/381077 EX TEMPORE Judgment 1The plaintiff, which trades under the name Coolmore Australia ( "Coolmore" ), has as its core business the sale of "nominations". The term "nomination", as Mr Niall John Ronan, the chief financial officer of the plaintiff deposes in paragraph 6 of his affidavit of 12 August 2011, is used in the horse breeding industry to refer to the presentation of a mare to a stallion for the purpose of breeding. A customer of the plaintiff, National Breeding Services Pty Ltd ( "National" ) , entered into an agreement in respect of those services and the defendants, by the same document which is to be found at tab 1 of Exhibit B, agreed to guarantee the debts of National. 2On 25 March 2011, the plaintiff obtained judgment against Mr Clemenger who is the first defendant, a co-director of National, and also a co-guarantor in an amount of approximately $3.1 million. As at 12 August 2011 no monies have been paid by Mr Clemenger in reduction of that debt (see paragraph 15 of Mr Ronan's affidavit of 12 August 2011). The plaintiff now seeks judgment against Mr Troy Hill, the second defendant. 3The matter was called twice this morning and there was no appearance by Mr Hill nor anybody acting on behalf of Mr Hill. Mr Hill has had solicitors acting for him in the matter and indeed a commercial list response was filed on his behalf in February this year. I shall refer to that commercial list response in a moment, but the solicitors for Mr Hill filed a Notice of Ceasing to Act in August and Mr Hill has not appointed solicitors to act for him in the proceedings since then. 4I am satisfied that Mr Hill is aware of the hearing, he having been so informed of the date by an e-mail sent by the plaintiff's solicitor. That e-mail is part of Exhibit A and was sent to the e-mail address given by Mr Hill in an e-mail he sent to the plaintiff's solicitor. 5The evidence establishes, firstly, that Mr Hill did enter into a guarantee of National's obligations to Coolmore on 26 October 2009; secondly, that Coolmore did provide nominations pursuant to the agreement to National; thirdly, that National has not paid the debt due pursuant to the agreement. It follows, by reason of clause 4.4 of the agreement by which Mr Clemenger and Mr Hill "unconditionally guarantee the due and punctual payment by National to Coolmore of all amounts from time to time payable by National in accordance with this Agreement" that Mr Hill is also liable under the guarantee to pay to Coolmore the amount currently due by National. 6As at 12 August 2011 the amount due was $3,158,444.60. Subject to two matters which I shall deal with in a moment, the plaintiff is entitled to judgment against Mr Hill. 7The two qualifications are these. Firstly, there is no evidence as to whether or not there has been a payment by Mr Clemenger under the judgment obtained against him since 12 August 2011. Given the passage of time I think there should be and I have indicated that I will require an affidavit from a responsible officer of the plaintiff to confirm that there has been no payment made by Mr Clemenger and, for abundant caution, or by Mr Hill since that date. The amount calculated is calculated up to 12 August 2011 and there should be a calculation of the current debt as well. 8The second matter to which I should advert is that Mr Hill filed, as I indicated earlier, a commercial list response. In that commercial list response he makes assertions about his knowledge of the contents of the document at the time that he signed it and he makes an assertion of unconscionability. He also makes reference to the Contracts Review Act 1980 (NSW) and asserts a failure by Coolmore to mitigate its loss. As Mr Hill has provided no evidence in support of these contentions and given his failure to appear in the proceedings I do not think it is necessary to give any consideration to those assertions. 9Accordingly, I propose to stand the matter down until 12 noon so that an affidavit can be prepared and in the event that the affidavit confirms there has been no payment by either Mr Clemenger or Mr Hill and states what is the current amount of the National debt, I propose to give judgment for that amount. I have indicated that I will accept a faxed copy of that document at 12 noon with a view to the original being filed within a reasonable time thereafter. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2011