Cai v Tsang [2018] NSWSC 625

Supreme Court New South Wales

Medium Neutral Citation: Cai v Tsang [2018] NSWSC 625 Hearing dates: 4 April 2018 Decision date: 09 May 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. The plaintiff's Notice of Motion filed on 14 March 2018 by which an order for summary judgment is sought is dismissed. 2. Unless a party makes an application in writing to my Associate within seven days for a different order, costs of and incidental to this application are to be costs in the cause. 3. Liberty to apply on three days' notice. Catchwords: CIVIL PROCEDURE – summary disposal – judgment for plaintiff – whether there is no arguable case – where defendant guaranteed loan made by plaintiff to defendant's company – where company defaulted on repayments – whether guarantee enforceable against defendant – whether terms void or unjust or unenforceable – whether plaintiff's conduct prevented performance – whether guarantee enforceable against third parties – not established that there is no arguable case – notice of motion dismissed Legislation Cited: Contracts Review Act 1980 (NSW) s 7 Uniform Civil Procedure Rules 2005 (NSW) r 13.1 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3 Category: Principal judgment Parties: Weiming Cai (Plaintiff) Andrew Tsang (Defendant) Representation: Counsel: Mr R C Gration (Plaintiff) Mr J Cameron (Defendant)