Cai v Tsang (No 2) [2018] NSWSC 1860

Supreme Court New South Wales

Medium Neutral Citation: Cai v Tsang (No 2) [2018] NSWSC 1860 Hearing dates: 3 December 2018 Date of orders: 03 December 2018 Decision date: 04 December 2018 Jurisdiction: Common Law Before: Fagan J Decision: (1) Judgment for the plaintiff against the defendant in the sum of $4,289,593.60. (2) The defendant is to pay the plaintiff's costs of the proceedings. Catchwords: CONTRACTS – construction – context – plaintiff lender to company over which defendant was director – where contract included personal guarantee by defendant – where contract also included undertakings by company to procure unregistered mortgages over properties owned by defendant's wife and daughter-in-law – where defendant's wife and daughter-in-law not parties to loan agreement – whether procurement of unregistered mortgages condition precedent to personal guarantee – no condition precedent in contract as construed – judgment for plaintiff

GUARANTEE AND INDEMNITY – contract of guarantee – co-guarantors – where loan agreement included undertakings by debtor company to procure unregistered mortgages over properties owned by director defendant's wife and daughter-in-law – whether wife and daughter-in-law co-guarantors – whether liability of defendant as personal guarantor excluded by non-signature of alleged co-guarantors to loan agreement and/or failure to procure unregistered mortgages over alleged co-guarantors' property Legislation Cited: Contracts Review Act 1980 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Migration Regulations 1994 (Cth) Cases Cited: CARS Pty Ltd v Brent [2015] TASSC 23 James Graham and Co (Timber) Ltd v Southgate-Sands [1986] QB 80 Keith Murphy Pty Ltd v Custom Credit Corporation Limited (1992) 6 WAR 332 Marston v Charles H Griffith & Co Pty Ltd (1982) 3 NSWLR 294 Re Farm Pride Foods Ltd [1999] QSC 174 Taubmans Pty Ltd v Loakes [1991] 2 Qd R 109 Texts Cited: David Marks and Gabriel Moss, Rowlatt on Principal and Surety (4th ed, 1982, Sweet and Maxwell) Category: Principal judgment Parties: Weiming Cai (plaintiff) Andrew Tsang (defendant) Representation: Counsel: R Gration (plaintiff) J Cameron, solicitor (defendant)