BNY Trust Company of Australia Limited v Banksia Finance and Leasing Co Pty Ltd [2013] NSWSC 1776

BNY Trust Company of Australia Limited v Banksia Finance and Leasing Co Pty Ltd [2013] NSWSC 1776

Banksia was served but filed no defence, and the evidence established the loan, default and outstanding indebtedness under the First Loan Facility as varied by the Deeds of Forbearance, so default judgment was available. The Amended Defence of the second to fifth defendants raised no real question to be tried: the guarantees and deeds complied with s 127 of the Corporations Act 2001 (Cth), no statement of reliance on s 127 and no s 248B(2) declaration or resolution was required, and the pleaded fiduciary/accessorial liability defence lacked the necessary allegations and evidentiary basis. Applying General Steel Industries, summary judgment was therefore entered for the plaintiffs against...

Jurisdiction
Australia
Judgment Date
03 December 2013
Procedural Posture
Interlocutory Applications / Plaintiffs' Notice of Motion Seeking Default Judgment Against the First Defendant Under Rule 16.3 of the Uniform Civil Procedure Rules 2005 (nsw), Summary Judgment Against the Second to Fifth Defendants Under Rule 13.1, and Alternatively Strike Out of the Defence Under Rule 14.28.
Outcome
Leave to file the Amended Defence was granted; default judgment was entered for the plaintiffs against the first defendant; summary judgment was entered for the plaintiffs against the second, third, fourth and fifth defendants; the proceedings were re-listed for final and ancillary orders.
Legal Topics
['default Judgment' 'summary Judgment' 'execution of Deeds by Corporations' 'guarantees and Deeds of Forbearance' 'accessorial Liability for Breach of Fiduciary Duty']
['civil Procedure' 'corporations Law' 'banking and Finance' 'guarantees' 'trusts and Fiduciary Obligations'] ['default Judgment' 'summary Judgment' 'execution of Deeds by Corporations' 'guarantees and Deeds of Forbearance' 'accessorial Liability for Breach of Fiduciary Duty']

Case Brief

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Procedural Posture

Interlocutory Applications / Plaintiffs' Notice of Motion Seeking Default Judgment Against the First Defendant Under Rule 16.3 of the Uniform Civil Procedure Rules 2005 (nsw), Summary Judgment Against the Second to Fifth Defendants Under Rule 13.1, and Alternatively Strike Out of the Defence Under Rule 14.28.

Legal Issues

  1. 1 ['Whether default judgment should be entered against the first defendant where it was served with the Statement of Claim and filed no defence.' 'Whether summary judgment should be entered against the second to fifth defendants on the basis that the Amended Defence raised no real question to be tried.' 'Whether the First Guarantee, Second Guarantee and Deeds of Forbearance were duly executed by the corporate defendants under ss 127 and 129 of the Corporations Act 2001 (Cth).' 'Whether a declaration or resolution under s 248B(2) of the Corporations Act 2001 (Cth) was required for due execution.' "Whether the fifth defendant's pleaded allegations of breach of trustee or fiduciary obligations and the plaintiffs' alleged accessorial liability disclosed an arguable defence."]

Ratio Decidendi

Banksia was served but filed no defence, and the evidence established the loan, default and outstanding indebtedness under the First Loan Facility as varied by the Deeds of Forbearance, so default judgment was available. The Amended Defence of the second to fifth defendants raised no real question to be tried: the guarantees and deeds complied with s 127 of the Corporations Act 2001 (Cth), no statement of reliance on s 127 and no s 248B(2) declaration or resolution was required, and the pleaded fiduciary/accessorial liability defence lacked the necessary allegations and evidentiary basis. Applying General Steel Industries, summary judgment was therefore entered for the plaintiffs against...

Court Disposition

Leave to file the Amended Defence was granted; default judgment was entered for the plaintiffs against the first defendant; summary judgment was entered for the plaintiffs against the second, third, fourth and fifth defendants; the proceedings were re-listed for final and ancillary orders.

Orders

  • ['Grant leave to the second to fifth defendants to file the Amended Defence dated 6 June 2013.' 'Pursuant to Rule 16.3 of the Uniform Civil Procedure Rules 2005, default judgment is entered for the plaintiffs against the First Defendant.' 'Pursuant to Part 13, Rule 13.1 of the Uniform Civil Procedure Rules 2005,...