A claim by a wife that a guarantee by her of her husband’s debts should be set aside …
In the Supreme Court matter of Greentown Bellambi Pty Ltd v Wong  NSWSC 872, which was before his Honour, Justice Ball it was argued by the defendant the guarantee was unconscionable and should be set aside.
Briefly, the facts of the case were that, after a long running dispute and as part of a settlement of a claim by the plaintiff against Mr Wong and others, Mr Wong’s wife, Liza Noi Kiu Wong guaranteed the payment of the settlement sum. Mrs Wong did not argue that she gave the guarnatee or that the amount claimed was incorrect, but rather, she claimed that the guarnatee should be set aside because it was unconscionable.
In order for the guarantee to be set aside on unconscionable grounds, Mrs Wong was required to prove the following:
1. that she gave the guarantee under the actual duress of her husband or that she did not understand the document;
2. that she did not gain anything from giving the guarantee; and
3. that the plaintiff did not take steps to explain the guarantee to her or take steps for a stranger to explain the guarantee to her.
Mrs Wong did not claim actual undue influence. However, she argued that she did not understand the guarantee, that she left all matters of business to her husband, that she gained nothing from giving the guarantee and that the document was not explained to her.
Based on the evidence before the Court, his Honour found that the plaintiff appreciated that Mrs Wong did not benefit from the guarantee and reposed trust and confidence in her husband. For these reasons, the plaintiff insisted that she receive independent legal advice in relation to the guarantee. Mr Wong informed the plaintiff that his wife would be advised about the guarantee by the in-house counsel of his companies, Ms Kok. Ms Kok was a lawyer permitted to practice in Malaysia but did not have a practicing certificate in New South Wales. Ms Kok informed Mrs Wong of her circumstances and that she could not advise on the guarantee. Mrs Wong said that she was happy to proceed and signed the guarantee which was witnessed by Ms Kok.
His Honour rejected Mrs Wong’s defence and concluded that the plaintiff had no way of knowing of Ms Kok’s status and there was no reason for them to make additional inquiries in this regard. The plaintiff was successful and judgment was entered against Mrs Wong for in excess of $15,000,000.
COVID-19 update: relief for retail and commercial tenants …
On 13 August 2021, the New South Wales government extended relief for retail and commercial tenants from 20 August 2021 to 13 January 2022 and reinstated mandate rent relief. Additionally, a freeze on rent increases was also imposed until January 2022.
Should any of our newsletter readers require any further information in respect of the mandate rent relief or other legal areas do not hesitate to contact Peter Jackson at firstname.lastname@example.org or Costin Stan at email@example.com..