Obvious Deadline Pty Ltd v Clancy; Clancy v Obvious Deadline Pty Ltd [2016] NSWSC 1837

Supreme Court New South Wales

Medium Neutral Citation: Obvious Deadline Pty Ltd v Clancy; Clancy v Obvious Deadline Pty Ltd [2016] NSWSC 1837 Hearing dates: 28 November – 1 December 2016; further submissions on 5 and 12 December 2016 Decision date: 16 December 2016 Jurisdiction: Equity Before: Stevenson J Decision: Guarantor entitled to contribution from co-guarantor of $46,625 Catchwords: GUARANTEES – where co-guarantor procured payment of debt – where debt overpaid – where part of funds used to pay debt were proceeds of professional negligence proceedings arising from entry by the co-guarantor into the guarantee – what part of amount paid by co-guarantor recoverable from remaining solvent guarantor – where other co-guarantors insolvent – whether proportion of amount recoverable dependent on solvent guarantors when proceedings commenced or when contribution determined Legislation Cited: Bankruptcy Act 1966 (Cth) Cases Cited: Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342; HCA 55 Duncan Fox & Co v North and South Wales Bank (1880) 6 AC 1 Friend v Brooker (2009) 239 CLR 129; HCA 21 Lavin v Toppi (2015) 254 CLR 459; HCA 4 Mahoney v McManus (1981) 180 CLR 370 Walker v Bowry (1924) 35 CLR 48; HCA 28 Texts Cited: C Mitchell, P Mitchell, S Watterson, Goff and Jones: The Law of Unjust Enrichment, (9th ed 2016, Sweet & Maxwell) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies, (5th ed 2014, LexisNexis Butterworths) J O'Donovan and J C Phillips, Modern Contract of Guarantee, (4th ed 2015, Thomson Reuters) S A T Rowlatt, Rowlatt's Principal and Surety, (1st ed 1898, Sweet & Maxwell Category: Principal judgment Parties: Obvious Deadline Pty Ltd (Plaintiff/First Cross-Defendant) Robert Llewellyn Clancy (Defendant/Cross-Claimant) SCL Crisp Legal Pty Ltd (Second Cross-Defendant) Glenn Brian Crisp (Third Cross-Defendant) Trout Hall Pty Limited (Fourth Cross-Defendant) John Richard Paul Hunt (Fifth Cross-Defendant) e.law SCL Pty Ltd trading as e.law Legal Services (Sixth Cross-Defendant) Timothy Russell Dewhurst (Seventh Cross-Defendant) Representation: Counsel: J P Knackstredt (Trout Hall Pty Limited) L Hammond (Robert Llewellyn Clancy)