Muddle v Cormie [2017] NSWSC 1581

Supreme Court New South Wales

Medium Neutral Citation: Muddle v Cormie [2017] NSWSC 1581 Hearing dates: 17 November 2017 Decision date: 20 November 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Extend the time for filing the summons to 9 June 2017.

(2) To the extent required, grant leave to the plaintiff to appeal. (3) Appeal dismissed.

(4) Unless any party makes an application in writing, with any evidence in support, to my Associate within seven days hereof for a different order, order the plaintiff to pay the defendants' costs of the proceedings.

(5) If an application is made pursuant to (4) above, the respondent is to provide a response to my Associate within a further 7 days in order that the matter can be determined on the papers.

(6) Grant liberty to apply on 3 days' notice. Catchwords: APPEAL – leave to appeal from Local Court on mixed question of fact and law– where appellant held liable to pay for goods as guarantor in the Court below – whether liability under guarantee was an issue at trial – HELD– issue of liability under guarantee conceded in Court below – plaintiff bound by conduct of her counsel – not in the interests of justice to permit plaintiff to litigate matter conceded in Court below

CONTRACTS – guarantee – consideration provided by deliveries made in future on terms other than cash – enforceable against guarantor Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 100, Pt 6 Local Court Act 2007 (NSW), ss 39, 40, 41 Uniform Civil Procedure Rules 2005 (NSW) rr 17.3, 50.3 Cases Cited: Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70 R v Birks (1990) 19 NSWLR 677 Silver v Dome Resources NL [2007] NSWSC 455; (2007) 62 ACSR 539 Category: Principal judgment Parties: Carol Ann Muddle (Plaintiff) Donald Keith Cormie (First Defendant) Donald Keith Cormie as executor of the Estate of the late Colleen Ann Cormie (Second Defendant) Representation: Counsel: J Pearson (Plaintiff) B Le Plastrier/J Ambikapathy (Defendants)