Perpetual Nominees Limited v Licata [2011] NSWSC 1592

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Nominees Limited v Licata [2011] NSWSC 1592 Hearing dates: 09/11/2011, 10/11/2011, 11/11/2011, 17/11/2011 Decision date: 19 December 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1)On the plaintiff's claim: (a)Judgment against the first defendant in the sum of $10,216,462.60; (b)Judgment against the second defendant in the sum of $10,435,462.60; (c)Judgment against the third defendant in the sum of $10,435,462.50; (d)Judgment against the fourth defendant in the sum of $10,216,462.60; (e)Judgment against the fifth defendant in the sum of $1,825,000; (f)Judgment against the sixth defendant in the sum of $1,825,000; (g)Judgment against the seventh defendant in the sum of $1,460,000; (h)Judgment against the eighth defendant in the sum of $1,460,000; (i)Judgment against the ninth defendant in the sum of $1,460,000; (j)Judgment against the tenth defendant in the sum of $1,460,000; (k)Judgment against the eleventh defendant in the sum of $876,000; (l)Judgment against the thirteenth defendant in the sum of $438,000; (2) Dismiss the first and second cross claims; (3) Order that the defendants, except the twelfth defendant, pay the plaintiffs' costs of the claim and cross claims. Catchwords: GUARANTEE - enforcement of guarantee - whether plaintiff has standing - whether demand on guarantors - sale of property as mortgagee in possession - whether mortgagee complied with duty of good faith - whether right to set off Legislation Cited: Civil Procedure Act 2005 Corporations Act 2001 Real Property Act 1900 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd (2002) 10 BPR 19,565 Bank of Western Australia Limited v Usalj [2010] NSWSC 991 Bond v Larobi Pty Ltd (1992) 6 WAR 489 Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 Emerson v Custom Credit Corporation Ltd [1994] 1 Qd R 516 Esso Petroleum Co Ltd v Alstonbridge Executor Trustee Australia Ltd v Deloitte Haskins Sells (1996) 22 ACSR 270 GE Capital Australia v Davis (2002) 180 FLR 250 Gye v McIntyre (1991) 171 CLR 609 Hawkesbury Valley Developments Pty Ltd v Custom Credit Corp (1994) 8 BPR 15,581 Hong Kong Bank of Australia Ltd v Larobi Pty Ltd (1991) 23 NSWLR 593 Morris v Hallet Brick Industries (1996) 67 SASR 328 National Westminster Bank plc v Skelton [1993] 1 WLR 72 Novamaze Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors (1995) 128 ALR 540 Properties Ltd [1975] 1 WLR 1474 Scott v Avery (1856) 5 HL Cas 811 Skinner v Jeogla Pty Ltd [2001] NSWCA 15 Permanent Custodians Ltd v AGB Developments Pty Ltd [2010] NSWSC 540 Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114; (2004) 60 NSWLR 646 Waterhouse v Waterhouse (1999) 46 NSWLR 449 Texts Cited: Fisher and Lightwood's Law of Mortgage, Australia edition, Butterworths, 1995 Phillips and O'Donovan, Modern Contract of Guarantee, 2nd Edition, Lawbook Company Limited 1992 Category: Principal judgment Parties: Perpetual Nominees Limited (plaintiff) Renato Licata (first defendant) Pasquale Gilio (second defendant) Alex George Fahd (third defendant) Maracaz Pty Ltd (fourth defendant) Domonic Sorbara (fifth defendant) Australian Customs Professional Consulting Services Pty Ltd (sixth defendant) Diego Iaria (seventh defendant) Iaria Holdings Pty Ltd (eighth defendant) Gianfranco Placanica (ninth defendant) Placanica Developments Pty Ltd (tenth defendant) Miroslav Barac (elevenenth defendant) Josanica Pty Ltd (twelfth defendant) Zdenko Herceg (thirteenth defendant) Representation: AJ McInerney (plaintiff) F Salama (third defendant) F Assaf (fifth, sixth, ninth and tenth defendants) Gadens Lawyers (plaintiff) Belgrave Lawyers (third defendant) Thomsons Lawyers (fifth, sixth, ninth and tenth defendants) File Number(s): 2009/297206