Hazell & Hazell V Bertola

01 Jan 2018


Shomik litigated a High Court claim to set aside a charge upon property, which secured some £800k due under a guarantee. The following issues arose:

(a) had the primary debt been released – B admitted it had but argued that a primary obligation to pay on H’s behalf had arisen on the correct construction of the charge deed and this subsisted;

(b) undue influence – B argued that this doctrine had no application in the current circumstances which were properly characterised a commercial surety transaction, or that the presumption did
not arise as the transaction could be explained, and that B did not have constructive notice of any undue influence;

(c) non est factum – B argued this doctrine did not apply as H was simply oblivious to what he was signing;

(d) extortionate credit bargain – B argued that these provisions did not apply as the Charge operated as security, and did not provide credit.