Burrawong Investments P/L v Lindsay & Anor

[2002] QSC 82

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Equity
2. › Undue Influence
3. › Actual undue influence
4. › Whether relationship between parties gave rise to ascendancy or influence
5. › Whether will of innocent party overborne
1. Equity
2. › Unconscionable Conduct
3. › Special disability
4. › Whether guarantors suffered special disability vis-à-vis borrower
5. › Whether borrower aware of any disabling condition
6. › Whether unconscientious advantage taken
1. Equity
2. › [name withheld] v [name withheld] principle
3. › Surety transactions between spouses
4. › Whether wife was volunteer
5. › Whether transaction for husband's benefit alone
6. › Whether creditor took benefit without explanation
1. Contract
2. › Guarantee and Indemnity
3. › Independent legal advice
4. › Whether advice given was independent
5. › Whether creditor entitled to rely on solicitor's certificate of independent advice

Quick Take

A debtor is not constituted the agent of the creditor merely by reason of the creditor leaving it to the debtor to obtain the signature of a third party guarantor. A creditor who insists on independent legal advice for guarantors and receives solicitor's certificates is entitled to rely on those certificates and is not put on inquiry as to the adequacy of the advice. The [name withheld] v [name withheld] principle does not apply where the wife is not a volunteer and stands to benefit equally from the transaction. The business purpose exclusion in s 6(2) of the Contracts Review Act (NSW) 1980 does not apply to persons whose intended role is essentially that of shareholders in a company that would carry on the business.