Haider v Gudelj

365 ALR 143; [2021] ACTCA 9

ACT Court of Appeal21 April 2021

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Interrogate

Catchwords

1. Equity
2. › Equitable contribution
3. › Contribution between co-sureties
4. › Clean hands doctrine
5. › Whether guarantor's conduct in retaining profits from sale of secured property rather than discharging guaranteed debt constituted disentitling conduct
6. › Whether conduct had immediate and necessary relation to equity sued for
1. Equity
2. › Equitable contribution
3. › Contribution between co-sureties
4. › Co-ordinate liability
5. › Principles governing entitlement to contribution
6. › Whether co-sureties shared common interest and common burden
1. Equity
2. › Equitable contribution
3. › Contribution between co-sureties
4. › Claim by co-surety who has not contributed to discharge of guarantee
5. › Whether equity of contribution available to co-surety who made no payment towards discharge
1. Appeal
2. › New point on appeal
3. › Leave to argue point not raised at trial
4. › Whether in interests of justice to permit new point of general importance
5. › Water Board v Moustakas (1988) 180 CLR 491

Quick Take

A co-surety who claims equitable contribution must come to equity with clean hands; conduct that is the immediate and fundamental cause of the creditor's loss (analogous to 'boring the hole in the ship') will disentitle the claimant. A co-surety who has not contributed anything towards the discharge of the guaranteed debt has no standing to claim contribution. There is no general discretion to adjust contribution between co-sureties based on relative culpability or abstract notions of justice and fairness.