Ngu v Australian & New Zealand Banking Group & Ors [2013] NSWSC 1861

Supreme Court New South Wales

Medium Neutral Citation: Ngu v Australian & New Zealand Banking Group & Ors [2013] NSWSC 1861 Hearing dates: Friday, 6 December 2013 Decision date: 06 December 2013 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to paras [40] and [42]-[44] of judgment. Catchwords: EQUITY - subrogation - guarantor's claim to be subrogated to creditor's securities - creditor not made whole - guarantor attended on creditor's solicitors unannounced - guarantor proffered cheque for amount said in statement by creditor to be owing on loan facility less adjustment - creditor claims greater amount due under loan facility - whether creditor estopped from denying amount owing as per its statement - whether purported tender of cheque sufficient to entitle guarantor to be subrogated to creditor's securities - whether there can be subrogation to securities when creditor had appointed receivers pursuant to those securities Cases Cited: Bofinger v Kingsway Group Limited [2009] HCA 44, 239 CLR 269 McColl's Wholesale Pty Limited v State Bank of New South Wales [1984] 3 NSWLR 365 Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654 Austin v Royal [1999] NSWCA 222; (1999) 47 NSWLR 27 Commonwealth Bank v Verwayen (1990) 1 CLR 394 Category: Principal judgment Parties: Sean Ngu (Plaintiff) Australian & New Zealand Banking Group (1st Defendant) FTI Consulting (Australia) Pty Limited (2nd Defendant) Arkbay Investments Pty Limited (in liquidation) (receivers and managers appointed) (3rd Defendant) Representation: Counsel: B Levet (Plaintiff) M Tyson (Defendants) Solicitors: Spectrum Legal Group (Plaintiff) Allens (Defendants) File Number(s): 2013/347430