Exploring Co-Surety Payment Principles: Lavin vs. Toppi Case Analysis

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CASE ANALYSIS: LAVIN v TOPPI In Lavin v Toppi, the High Court clarified the principles governing contribution between co-sureties where one surety pays more than its share of a guaranteed debt. I. MATERIAL FACTS The first appellant (Ms Lavin) and the first respondent (Ms Toppi) were guarantors, jointly and severally liable for a consolidated loan in the amount of $7,768,000 (the loan) which was provided by the National Australia Bank (the Bank) to Luxe Studios Pty Ltd (Luxe), a company of which the parties were directors and equal shareholders. In 2009, Luxe went into receivership and the Bank made demands upon each of the guarantors for payment of the balance of the loan. The proceeds of the sale of a property owned by Luxe were paid …show more content…

In reaching this conclusion the court drew upon the statement of Glanville Williams that “the right to contribution among co-debtors is independent of any present rights of the principle creditor.” Further, Wolmershausen v Gullick was applied as authority for the proposition that the right to contribution exists between co-sureties despite the fact that enforcement by the creditor may be barred against one debtor. Therefore, because the covenant did not extinguish Ms Lavin’s liability under the guarantee, it followed that the parties continued to share co-ordinate liabilities so as to entitle Ms Toppi to recover contribution from Ms …show more content…

In the present case, equity intervened to prevent Ms Toppi from shouldering a disproportionate share of the debt, not by interfering with the action of the Bank, but rather by providing for the remedy of contribution from the time that the parties were called upon to satisfy the guarantee. Thus, equity can be said to follow the law in the sense that it does not seek to direct the manner of exercise of the rights of the creditor, but instead it makes an adjustment between the

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