A guarantor's status as director and shareholder of the debtor company does not conclusively determine that the guarantor is not a 'volunteer' for the purposes of the Garcia v National Australia Bank Ltd unconscionability principles; the question depends on the actual facts of the guarantor's involvement. In arm's length commercial dealings where both parties have separate legal representation, a party is not normally under an obligation to alert the other to perceived deficiencies in the other's documentation, and failure to do so does not constitute misleading or deceptive conduct. Where summary judgment disposes of the whole claim, unconditional leave to defend is normally unjustifiable.
The full text is available to signed-in members, including the 4 later cases that cite this judgment.
1 of the 4 citing cases carry a classified treatment. How each court treated it is available to signed-in members.