FORMER Funda director Mark Owen has been found personally liable for more than $5 million owing to Merewether retirees Don and Janine McLachlan.
The Supreme Court of NSW ruled Owen was liable for the money loaned by the McLachlans, plus interest accruing daily, because he personally guaranteed two loan agreements.
Funda, a Merewether-based non-bank lender, collapsed in 2023 with debts of about $11 million, mostly secured from Hunter residents and their super funds.
Funda worked by sourcing a bank of cash from private lenders, which it used to provide loans to small businesses and individuals.
Associate Justice Joanne Harrison found Owen was personally liable for $3.288 million Funda owed to the McLachlans' superannuation fund, and $311,350 owed to a company owned by the couple.
She further ruled Owen was liable for daily interest accruing on the loans of $1410 for the super fund, and $26 for the company, taking the total to $5.128 million.
"It is difficult to accept that Owen, who holds a mortgage broking certificate and has recent experience working as a mortgage broker, would not have been aware of the effect of signing a loan document as a guarantor," Associate Justice Harrison said.
"Nevertheless, ... the loan agreements unambiguously impose a personal obligation onto each guarantor to repay any amount when due if not paid by the borrower."
Owen previously told the court he could not recall signing the McLachlans' loan agreements via DocuSign, and other people within Funda had access to his email account.
Funda's former chief financial officer said when he signed loan agreements as a guarantor, either by pen or DocuSign, he didn't believe he was giving a "personal guarantee", and disputed he was personally liable for the debt.
Owen told the court that Funda co-director Nathan Wright was responsible for the loan agreements.
Wright filed for bankruptcy in May last year after the McLachlans pursued him for personal guarantees, and it is understood he has moved interstate.
The two loan agreements, which were put together by Funda and did not require the McLachlans to seek independent legal advice, were signed on July 1, 2021.
Associate Justice Harrison described Owen's submissions and evidence regarding his signature on the two loan agreements as "inconsistent and confusing".
"At times, Owen admitted that he signed the loan agreements as a director and not as a guarantor," she said.
"At other times, Owen sought to argue that it cannot be proven that he signed at all."
The court heard Owen and Wright knew the McLachlans from Merewether Surf Life Saving Club, and went to them asking for money.
The Newcastle Herald reported in 2023 that Funda collapsed with debts of $11 million after failing to meet several creditors' demands for loans to be repaid.
A scathing liquidator's report issued in March 2024 by Bradd Morelli, of Jirsch Sutherland, claimed Funda and related company Collaborating may have traded while insolvent for years before their collapse, and drew into question allegations of a ponzi scheme, which have been strenuously denied by the directors.
The court heard that Owen, 55, had been working as a truck driver until an accident in April, when he rolled a vehicle and suffered serious injuries.
