ANZ v McKay [2013] NSWSC 683

The bank was claiming monies under guarantees, the guarantors were defending the claim on three grounds: that the guarantee and indemnity was deficient because the bank hadn’t advised about the need for independent legal advice; on the basis of a High Court decision (Garcia v NAB [1998]); and that the guarantee was unjust under the Contracts Review Act 1980 because the bank failed to explain the need for independent legal advice.

The judge determined that the guarantors had not properly set out the basis for the relevance of the High Court decision to the case, nor set out the particulars or material facts of their Contract Review Act defence. Therefore the defence of each guarantor was struck out. However because the guarantors were not legally represented the judge put the case over to a later date so that they could get legal advice and file and serve new defences.

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