McKellar, Donald Campbell & Ors v Commonwealth Bank of Australia Commonwealth Bank of Australia v McKellar, Donald Campbell & Ors [1996] FCA 954

McKellar, Donald Campbell & Ors v Commonwealth Bank of Australia Commonwealth Bank of Australia v McKellar, Donald Campbell & Ors [1996] FCA 954

Donald McKellar as guarantor and mortgagor is liable for the debts arising from SIRD's indebtedness to the Bank and under the personal bills facility. The Bank's demand and certificates established the quantum due. The applicant's defences based on statutory misrepresentation, unconscionable conduct, and set-off failed for lack of evidence of damage or of relevant representations to him. The dispute as to quantum was insufficiently pleaded, and the documentary material adduced by the Bank was uncontested.

Jurisdiction
Australia
Judgment Date
06 November 1996
Procedural Posture
Civil / Judgment on Cross Claim After Trial
Outcome
Judgment for the Bank (Respondent/Cross-claimant) against Donald McKellar (First Applicant/First Cross-respondent)
Legal Topics
['mortgages' 'guarantees' 'trade Practices Act 1974' 'set Off' 'damages' 'unconscionable Conduct']
['banking and Finance' 'contract Law' 'trade Practices'] ['mortgages' 'guarantees' 'trade Practices Act 1974' 'set Off' 'damages' 'unconscionable Conduct']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil / Judgment on Cross Claim After Trial

Legal Issues

  1. 1 ['Liability under mortgage and guarantee granted to secure company debts' "Right to set-off damages claim for alleged Trade Practices Act contraventions against bank's claims" 'Correct quantification of amounts owed under facility, mortgage and guarantee' 'Entitlement to damages for allegedly excessive demands and unconscionable conduct']

Ratio Decidendi

Donald McKellar as guarantor and mortgagor is liable for the debts arising from SIRD's indebtedness to the Bank and under the personal bills facility. The Bank's demand and certificates established the quantum due. The applicant's defences based on statutory misrepresentation, unconscionable conduct, and set-off failed for lack of evidence of damage or of relevant representations to him. The dispute as to quantum was insufficiently pleaded, and the documentary material adduced by the Bank was uncontested.

Court Disposition

Judgment for the Bank (Respondent/Cross-claimant) against Donald McKellar (First Applicant/First Cross-respondent)

Orders

  • ['Donald McKellar to pay Commonwealth Bank of Australia $1,660,240.85' 'Order for possession of the Main Street, Ulverstone property in favour of the Bank']