James v Australia and New Zealand Banking Group Ltd

(2018) 97 NSWLR 663; [2018] NSWCA 41

NSW Court of Appeal

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Interrogate

Catchwords

1. Judgments and Orders
2. › Merger of rights in judgment
3. › Consent judgment
4. › Guarantor's rights merged in judgment debt
5. › Whether guarantor can raise post-judgment breaches of duty to reduce judgment debt
6. › Rule against double recovery or double satisfaction
7. › Whether rule extends to notional or hypothetical receipts
1. Corporations
2. › Controllers
3. › Duty of care in exercising power of sale
4. › Section 420A of the Corporations Act 2001 (Cth)
5. › Whether s 420A provides a remedy for breach
6. › Whether s 420A alters principles of double recovery after judgment entered against guarantor
7. › Corporations Act 2001 (Cth), ss 9, 420A
1. Guarantee and Indemnity
2. › Guarantor's rights
3. › Sale of secured assets at undervalue
4. › Merger of guarantor's rights in consent judgment
5. › Whether guarantor can insist on reduction of judgment debt for notional shortfall in realisations

Quick Take

A judgment creditor enforcing a consent judgment against a guarantor must give credit for actual receipts from realisation of securities but is not obliged to give credit for notional amounts that would have been received but for breach of duty by receivers in realising secured assets; s 420A(1) of the Corporations Act does not alter this position.