Introduction
Performance bond or other type of guarantee in which the guarantor effectively becomes a co-signatory to the underlying contract is considered as the contract of mortgage and guarantee (Schneeman, 2012). And unlike in a demand guarantee the guarantor acquires certain rights under the contract and can challenge the demand for payment of the guarantee sum. In this report it is to be described that the respondents Mr and Mrs. Amadio, executed a guarantee and mortgage( as security for the guarantee) in favour of the appellant bank. The purpose of this is to guarantee debts of their son's ( Vicenzo Amadio's ) Company. Thus the whole report is based on the mortgage issues which have been faced by the Respondents.
1.As per the given case study it is explained that Mr. And Mrs. Amadio have given the guarantee in the favour of their son Vicenzo who has taken the loan from the bank. They have used the legal issue while doing a case these are mentioned as under:
A personal guarantee creates a secondary obligation to support the primary obligation between the lender and the borrower (PADHI, 2012). Hence in the given situation Mr and Mrs. Amadio are in the position of guarantor, their son Vicenzo is borrower and the bank is lender. Thus their liability is secondary regarding the payments of the given loan.
The another cause of action which can be raised by them is their obligation is contingent on the Vicenzo's primary obligation, hence if he is not liable to pay the borrowed sum to the lender then Mr. and Mrs. Amadio should not be liable either.
However the bank would typically demand on the Vecinzo and or Mr and Mrs. Amadio first and give them opportunity to repay before demanding on the personal guarantor ( Mr and Mrs. Amadio) in the above case and its good to do so. It should be noticed that if there is of collusion between lender ( the bank) and the and principal (Vicenzo) or dealings between them which might prejudice Mr. and Mrs. Amadio then they may attempt to seek an order restraining the performance of the personal guarantee.
Thus in above three main cause of actions have discussed which can be used by Mr. and Mrs. Amadio while doing the case.
2.The appeal court orders that mortgage should be set aside. The court held that it was the obligation of the bank to reveal the true position of the accounts of vicenzo's company and it was liable for his representation. They further held that the transaction was unconscionable one, for which equity would proved relief. Thus the trial court declared that the respondents are not liable for any penal provision under this case as no duty of them is occurred.
3.Justice Gibbs first observed that a contract of guarantee is not uberrimae which means that utmost good faith in which one party is under a duty to disclose all material facts to the other (Agapiou, and Clark, 2012). Here a surety ( Mr. and Mrs. Amadio) who guarantees a customer's account (Vicenzo's Account) with the bank will not expect that the account has not been overdrawn or that the bank is satisfied with his credit., for the probable reason which is the bank requires the guarantee because the customer has been overdrawing his account and wishes to do so again and that the bank is not satisfied with his credit. Thus it is concluded that the bank did not disclose all these material facts amounted to misrepresentation of a material part of transaction between company and the bank and that the memorandum of mortgage, including the guarantee which it contains is not binding on the Mr. and Mrs Amadio.
The other thing is that the bank is required to disclose all the material factors in two situations these are exceeding overdraft limit of the customer and dishonouring of the cheques. If there are no more cases than that, then the bank is not liable to do the disclosure of those facts.
4.As per the judgement of justice Gibbs that the bank is bound to disclose anything which has taken place between the bank and the principal debtor which was not naturally to be expected or the necessity for disclosure only goes to the extent of requiring it where there are some unusual features in the particular case relating to particular account which is to be guaranteed. Thus these are the factors which are to be disclosed by the bank.
5.The judge identified that there is a misrepresentation which is made by the bank, it is the duty of the bank to disclose the matters about Vicenzo's account and its details. The judge concluded the decision in favour of Mr and Mrs. Amadio, by explaining the fact that the bank has done the misrepresentation and has not disclosed all the material facts regarding the customer's account. Thus his honour dismissed the appeal on the grounds of misrepresentation through non-disclosure.
6.Justice Mason gave the decision that court have exercised jurisdiction to set aside contracts and other dealings on the variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. Thus these are the grounds on which the judgement is made.
7.Justice Gibbs concluded the case by explaining that the failure of the bank to make disclosure of the material consideration regarding the account of Vicenzo is amounted to misrepresentation of a transaction between the company and bank and that the memorandum of mortgage including of course the guarantee which it contains is not binding on the re
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