Guarantees

Bank of Western Australia Ltd v Tumuluri [2011] NSWSC 834

The bank lent money to a company, the director of which guaranteed the debt. However the executed guaranteed referred to the guaranteed agreement as the one constituted by the initial loan offer of the bank. However the initial loan offer was not accepted, only the subsequent loan offer. The court held that the guarantee applied …

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Capital Finance Australia v Amargianitakis [2011] NSWSC 719

The borrowers defaulted on its development loans, in relation to which guarantees had been provided to the lender. The lender appointed receivers and managers to each of the borrower companies and sued the guarantors for the debt owed. The guarantors defended the claim on the basis that the lender breached various duties to sell the …

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Perpetual Trustee Company v Kwok [2011] NSWSC 422

This involved a loan for 35 million secured over Minto shopping centre. The loan went into default and the lender sued the guarantor. The guarantor sought to raise the defence of set-off based on losses allegedly caused to him by the lender. This was rejected by the Judge who noted: The alleged breaches arose out …

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BankWest v Hodgkinson [2011] NSWSC 96

This case concerned the bank’s claim against a guarantor Mr Justin John Brown. Mr Brown claimed he was removed as guarantor in respect of a facility to a business associate, Mr Lance Vincent Hodgkinson, for a commercial development. Mr Brown argued that the bank’s spoken words as to his removal as guarantor constituted misleading and …

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Industry Funds Management v Bellspin [2011] NSWSC 41

The lender advanced funds to develop a hotel in World Square. The loan went bad and the guarantor was sued. The guarantor lodged a defence claiming that the interest only period was two years (not six months) and therefore the loan was not in default. The Judge disbelieved the guarantor because: The guarantor took no …

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Gattellaro v Spencer [2010] NSWSC 1122

In 1989 when Westpac begun possession proceedings the amount owing under the mortgage was $197,000. The borrowers (a husband and wife) raised various defenses (including set-off, Contracts Review Act and Trade Practices Act) and fought tooth and nail all the way to the High Court in 2001. The bank won and the final indebtedness (including …

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