Padstow Corporation Pty Ltd v Fleming (No 2) [2011] NSWSC 1572

Supreme Court New South Wales

Medium Neutral Citation: Padstow Corporation Pty Ltd v Fleming (No 2) [2011] NSWSC 1572 Hearing dates: 31 October 2011, 1, 2, 3 & 4 November 2011 Decision date: 16 December 2011 Jurisdiction: Equity Division Before: Gzell J Decision: Plaintiff entitled to damages on claim. First cross-claim succeeds. Second cross-claim fails. Third cross-claim discontinued on settlement. Fourth cross-claim fails. Damages to be assessed. Catchwords: GUARANTEE AND INDEMNITY - Actions Against Surety - defence that not bound as signed as director of company and not in personal capacity - defence that guarantee unjust in terms of the Contracts Review Act 1980 - first cross-claim for breach of share sale agreement in failing to ensure transferor removed from guarantee - second cross-claim for misleading or deceptive statement in contravention of the Fair Trading Act 1987, s 42; negligence and equitable contribution from co-guarantor - third cross-claim discontinued - fourth cross-claim for negligence or breach of duty of care by solicitor Legislation Cited: Corporations Act 2001 (Cth) Contracts Review Act 1980 Fair Trading Act 1987 Fair Trading Amendment (Australian Consumer Law) Act 2010 Law Reform (Miscellaneous Provisions) Act 1946 Trade Practices Act 1974 (Cth) Cases Cited: Padstow Corporation Pty Ltd v Fleming [2011] NSWSC 1337 Delaney v Purves [1930] QWN 6 National Commercial Banking Corporation of Australia Ltd v Cheung & Anor (1983) 1 ACLC 1,326 Ariadne Steamship Co v James McKelvie & Co [1922] 1 KB 518 NEC Information Systems Australia Pty Ltd v Linton (1985) NSW ConvR 55-240 Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909 Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 Follacchio v Harvard Securities (Aust) Pty Ltd [2002] FCA 1067 St George Bank Ltd v Trimarchi & Anor [2004] NSWCA 120 Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260 CIT Credit Pty Ltd v Blayn Norman Keable [2006] NSWCA 130 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR Fitzgerald v Watson [2011] NSWSC 736 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 162 CLR 340 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129 Woolmington v Bronze Lamp Restaurant Pty Ltd [1984] 2 NSWLR 242 Category: Principal judgment Parties: Padstow Corporation Pty Ltd (Plaintiff) Thomas John Fleming (Second Defendant) Harold O'Brien (Third Defendant) Thomas Maurice Fleming (First Cross-Claimant) Alan Sher (Third Cross-Claimant) Robert Minter (Cross-Defendant to Fourth Cross-Claim) Representation: Counsel J Sleight/C Mulvey (Plaintiff) R Angyal SC/L Doust (Second Defendant) J Sheller (Third Defendant) G Rich/L Thomas (First Cross-Claimant) J Merkel (Third Cross-Claimant) G Curtin SC (Cross-Defendant to Fourth Cross-Claim) Solicitor Neville & Hourn Legal (Plaintiff) Cordato Partners (Second Defendant) Gilchrist Connell (Third Defendant) Addisons Lawyers (First Cross-Claimant) Smith Lawyers (Third Cross-Claimant) Middletons Lawyers (Cross-Defendant to Fourth Cross-Claim) File Number(s): 2008/279166