ANZ Banking Group Limited v Tiricovski [2012] NSWSC 1304

Supreme Court New South Wales

Medium Neutral Citation: ANZ Banking Group Limited v Tiricovski [2012] NSWSC 1304 Hearing dates: 4 & 5 July 2011 & 24 August 2011 Decision date: 26 October 2012 Jurisdiction: Common Law Before: Adams J Decision: 1. Judgment for the third and fifth defendants. 2. Further orders to be filed within 14 days or written submissions on the matters in dispute. 3. Liberty to apply on 3 days' notice. Catchwords: CONTRACTS - loan to company - personal guarantee by director - cross-guarantee in respect of loans to other related parties - release by bank of company on cross-guarantee - effect on personal guarantee - whether guarantees operative - new cross-guarantee - forgery of director's signature - indoor management rule - whether bank dealt with company - director's ostensible authority - whether personal guarantee covers later cross-guarantee - whether guarantee given in course of director's business - s 6(2) Contracts Review Act 1980 - whether unconscionable for bank to rely on guarantee Legislation Cited: Contracts Review Act 1980 Corporations Act 2008 Cases Cited: Australian Bank v Stokes & anor (1985) 3 NSWLR 175 Bank of Western Australia Limited v Primanzon and anor [2010] NSWSC 862 Blomley v Ryan (1956) 99 CLR 362 Collins v Parker (unreported NSWSC 11 May 1984) Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Commercial Bank v Pollard [1983] 1 NSWLR 75 Commonwealth Bank of Australia v Roubas & Anor [1997] NSWSC 475 Ford v Perpetual Trustees (2009) 75 NSWLR 42 Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146 Soyfer & Anor v Earlmaze & Ors [2000] NSWSC 1068 Story v Advance Bank Australia Ltd, (1993) 31 NSWLR 722 Toscano v Holland Securities (1985) 1 NSWLR 145 Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388 Texts Cited: Austin, Ford and Ramsay, Company Directors Principles of Law and Corporate Governance, LexisNexis Butterworths, 2005 Phillips & O'Donovan, The Modern Contract of Guarantee , 2nd Edition, Law Book Company, 1992 Category: Principal judgment Parties: ANZ Banking Group Limited (plaintiff) Robert Tiricovski (first defendant) Slavica Tiricovski (second defendant) Vlado Tiricovski (third defendant) Australian Fresh Confectionary Pty Limited (fourth defendant) Frenmast Pty Limited (fifth defendant) RV & Sons Limited (sixth defendant) Representation: M Cohen (plaintiff) R W Tregenza (defendants) Norton Rose Australia (plaintiff) Richard Licardy & Co (defendants) File Number(s): 2010/137578