Adisan Pty Ltd v Irwin [2015] NSWCA 217

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Adisan Pty Ltd v Irwin [2015] NSWCA 217 Hearing dates: 10 July 2015 Decision date: 30 July 2015 Before: Beazley ACJ at [1]; Meagher JA at [2]; Gleeson JA at [56] Decision: 1. Appeal dismissed. 2. Set aside order 3 made on 1 August 2014. 3. Order the appellant pay the respondent's costs of the appeal. Catchwords: CONTRACT – guarantee and indemnity – where guarantee provided that it could be extended to cover "new loan contract" – interpretation – deed of variation to extend guarantee presented to guarantors for agreement – terms of new loan contract capping liability of co-guarantor not disclosed in deed or otherwise – whether deed of variation effective to extend guarantee to cover the liability of the borrower under the new loan contract, including capping arrangement

AUSTRALIAN CONSUMER LAW – order under s 87 of the Trade Practices Act 1974 (Cth) – misleading or deceptive conduct including omission to disclose information – whether presentation of deed of variation without disclosure of agreement to cap co-guarantor's liability misleading or deceptive – whether guarantor suffered or likely to suffer loss or damage by the misleading conduct Legislation Cited: Trade Practices Act 1974 (Cth) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; 162 CLR 549 Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186 Blest v Brown (1862) 4 De G, F & J 367; 45 ER 1225 Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Greer v Kettle [1938] AC 156 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; 241 CLR 357 Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668 Texts Cited: J O'Donovan and J Phillips, Thomson Lawbook Co, Modern Contract of Guarantee, Vol 1 Category: Principal judgment Parties: Adisan Pty Ltd (Appellant) Craig Irwin (Respondent) Representation: Counsel: MK Condon SC with A Di Francesco (Appellant) P Bolster (Respondent)