Alceon Group Pty Ltd v Rose [2015] NSWSC 868

Supreme Court New South Wales

Medium Neutral Citation: Alceon Group Pty Ltd v Rose [2015] NSWSC 868 Hearing dates: 23 February 2015; 24 February 2015; 25 February 2015 Decision date: 03 July 2015 Jurisdiction: Common Law Before: Simpson J Decision: The parties to bring in short minutes of order to reflect the conclusions in this judgment Catchwords: CONTRACT - performance - plaintiff lending institution - loan to company guaranteed by first and second defendants - third party guarantors - mortgage - where plaintiff seeks to enforce personal guarantees and rights under mortgage

CIVIL LAW - whether plaintiff engaged in misleading and deceptive conduct, Competition and Consumer Act 2010 (Cth); Australian Securities and Investments Commission Act 2001 (Cth) - conduct not misleading or deceptive - claim against first defendant made out

CONTRACT - obligation to explain purport and effect of transaction - Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 - third party guarantor not given competent, independent or objective advice - obligation of solicitor undertaking role of giving advice to third party guarantor - conflict of interest - lender aware of conflict of interest - lender complicit in inadequate advice being given - unconscionable to enforce guarantee against second defendant - unconscionable contracts are unjust and ought not be enforced, Contracts Review Act 1980 (NSW), s 9 Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Contracts Review Act 1980 (NSW), s 7, s 9 Oaths Act 1900 (NSW) Real Property Act 1900 (NSW) Cases Cited: Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447 Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 Yerkey v Jones [1939] HCA 3; 63 CLR 649 Category: Principal judgment Parties: Alceon Group Pty Ltd (Plaintiff/First Cross-defendant/Second Cross-defendant) Peter Francis Rose (First Defendant/Second Cross-defendant) Betty Nola Rose (Second Defendant/First Cross-claimant) Representation: Counsel: M A Ashhurst SC/S B Docker (Plaintiff/First Cross-Defendant/Second Cross-Defendant) In person (First Defendant/Second Cross-Defendant) N J Kidd SC (Second Defendant/First Cross-Claimant)