Guarantees

Watson Superannuation Fund v Scott [2015] QCA 267

Clients lent superannuation money, unsecured, to their accountant which was never repaid. The client demanded repayment from the accountant and the accountant argued that the agreement did not contain a stand alone operative guarantee clause that made the accountant named as guarantor liable for the debts. Unknown to the clients, before they signed the agreement, …

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WM Financial Trading Systems v Zamac Property Holdings [2015] VSC 639

A farm and business was sold on vendor finance terms and the purchaser borrower gave a second mortgage and director’s guarantee to secure the finance. The court found that the director gave a director’s and personal guarantee noting: There is no particular reason why [the director] could not be understood as acting in both capacities, …

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George 218 v BOQ [2015] WASC 434

A borrower was lent money on the security of a mortgage and “all moneys” guarantees. The loan was refinanced but the guarantees continued for any future lending. The lender’s rights under the guarantees were transferred to BOQ and before BOQ lent money to the borrower to refinance its existing facilities, the borrower and BOQ entered …

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Pioneer Mortgage Services v Columbus Capital [2015] FCA 1067

A securitisation funder bought a loan book associated with mortgages originally funded by a bank and became subject to the bank’s obligations in its origination deeds. The originator’s employee stole money from borrowers by carrying out fraudulent redraws, which went undetected for 7 years because the originator had no system in place to cross-check redraws …

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Bowesco v Westpoint Management [2015] WASCA 184

A company borrowed money from two lenders and granted a first and second-ranking charge to the first and second lender respectively. The guarantor guaranteed the obligations of the company to the first lender. When the company got into financial difficulty, the guarantor advanced funds to the company to enable the completion of the project. Receivers …

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NAB v Voukidis [2015] NSWSC 185

The bank sought possession. The wife initially sought to argue unjustness under the Contracts Review Act and unconscionability. These claims were abandoned and the bank was granted possession. The bank then sought monetary judgement so it could pursue the borrowers for any shortfall. In response, the wife then sought to reinstate her previous defences and …

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Ramsay Health Care v Compton [2015] NSWSC 163

A guarantor attempted to resile from his $10m guarantee by arguing that the signing pages did not pertain to the guarantee but were stand alone documents intended to signify assent to a different proposed guarantee under which he would not incur any personal liability. Alternatively, the guarantor pleaded non est factum (not my deed) on the basis …

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