National Australia Bank Limited v Kim Francis Hunter & Anor (No 3) [2013] NSWSC 1642

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Kim Francis Hunter & Anor (No 3) [2013] NSWSC 1642 Hearing dates: 30 April, 1 and 9 May, 13 June and 12 July 2013 Decision date: 11 November 2013 Jurisdiction: Common Law Before: Slattery J Decision: Guarantees enforceable. Catchwords: CONTRACT - banking - bank seeks to enforce an all moneys mortgage securing a personal guarantee executed by the defendants in relation to a business loan -mortgage executed in 1992 - the first defendant claims that she was not aware at the time of executing the personal guarantee that her liability was secured by the mortgage - whether the bank officer informed the first defendant that the guarantee was secured by the mortgage - first defendant argues that the guarantees are void or voidable because of the bank's non-compliance with cl. 28.4 and 28.5 of the Code of Banking Practice - alternatively the first defendant seeks damages for breach of the Code in the amount equal to her liability to the bank - the bank admits breach of cl. 28.5 - the bank say it provided the first defendant with a list of any "related security contracts" pursuant to cl. 28.4 - nature of the obligations under the Code - effect of non-compliance with the Code - whether the first defendant would have proceeded with the guarantee if she knew it was secured by the mortgage. Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Brighton v Australia and New Zealand Banking Group Limited [2011] NSWCA 152 Commonwealth Bank of Australia v Starrs [2012] SASC 222 Cordon Investment Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Financings Ltd v Stimson [1962] 3 All ER 386 Flowers v National Australia Bank [2011] NSWSC 698 Gilbert McCaul (Aust) Pty Ltd v Pitt Club Limited (1959) SR (NSW) 122 Hancock v Williams (1942) SR (NSW) 252 ING Bank (Aust) v Leagrove Pty Ltd [2011] QCA 131 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 L'Estrange v F. Graucoo Ltd [1934[ 2 KB 394 Middleton Nominees v Westpac Banking Corporation [2008] FCA 371 Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 SAM Management Services (Aust) Pty Ltd v Bank of Western Australia [2009] NSWCA 320 Smith v South Wales Switchgear Ltd (1978) 1 All ER 18 Category: Principal judgment Parties: Plaintiff/Respondent:- National Australia Bank Limited First Defendant/Applicant:- Kim Francis Hunter Second Defendant/Applicant:- Kim Lee Hunter Representation: Counsel: Plaintiff/Respondent: B. Koch First & Second Defendants/Applicants: P.J. Cutler Solicitors: Plaintiff/Respondent: Turks Legal First & Second Defendants/Applicants: Hunter Flood Lawyers File Number(s): 2011/356806 Publication restriction: No