Adisan Pty Ltd v Irwin [2014] NSWSC 1043

Supreme Court New South Wales

Medium Neutral Citation: Adisan Pty Ltd v Irwin [2014] NSWSC 1043 Hearing dates: 23 & 24 June 2014 Decision date: 01 August 2014 Jurisdiction: Common Law Before: Nicholas AJ Decision: (1) The plaintiff's second further amended statement of claim be dismissed. (2) The plaintiff pay the first defendant's costs. (3) Pursuant to s 87(2)(ba) of the Trade Practices Act, order made that the plaintiff's claim be refused. (4) Direct that the orders be entered forthwith. Catchwords: GUARANTEE AND INDEMNITY - loan agreement contained guarantee by first defendant - principal not repaid according to loan terms - variation of loan agreement executed to provide extension of time in which to pay - variation agreement contained guarantee by co-guarantor - lender and co-guarantor agreed to cap liability of co-guarantor - first defendant not aware of capping arrangement - whether first defendant bound by variation of loan agreement Legislation Cited: Trade Practices Act 1974 (Cth) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Limited (1987) 162 CLR 549; (1987) HCA 15 Category: Principal judgment Parties: Adisan Pty Limited (Plaintiff) Craig Irwin (First Defendant) James Vertzayias (Second Defendant) Representation: Counsel: A Di Francesco (Plaintiff) P Bolster (First Defendant) D Hand (Cross-Defendant/Second Cross-Claimant) Solicitors: Wood Marshall Williams (Plaintiff) Verekers Lawyers (First Defendant) Yates Beaggi Lawyers (Cross-Defendant/Second Cross-Claimant) File Number(s): 2012/101107