Imperial Tarmacadam and Asphalting Company Pty Limited v St George Bank Limited [2009] NSWSC 1287

Imperial Tarmacadam and Asphalting Company Pty Limited v St George Bank Limited [2009] NSWSC 1287

The Reply was not struck out because the Bank did not show that the plaintiff's penalty contention was bound to fail or almost incontestably bad. The meaning of breach of contract in the law of penalties was not necessarily settled, the first-instance Ringrow reasoning arguably allowed the plaintiff's contention, and there were live factual issues as to whether cl 4 necessarily involved a genuine pre-estimate of loss.

Jurisdiction
Australia
Judgment Date
12 November 2009
Procedural Posture
Commercial List Proceeding Concerning Monies Had and Received and a Cross Claim for Break Costs Under a Loan Facility / Defendant's Motion to Strike Out the Plaintiff's Commercial List Reply
Outcome
Motion dismissed. Bank to pay the plaintiff's costs.
Legal Topics
['pleading' 'strike Out Application' 'penalty Doctrine' 'break Costs' 'fixed Rate Bill Acceptance/discount Loan Facility']
['procedure' 'contract'] ['pleading' 'strike Out Application' 'penalty Doctrine' 'break Costs' 'fixed Rate Bill Acceptance/discount Loan Facility']

Case Brief

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Procedural Posture

Commercial List Proceeding Concerning Monies Had and Received and a Cross Claim for Break Costs Under a Loan Facility / Defendant's Motion to Strike Out the Plaintiff's Commercial List Reply

Legal Issues

  1. 1 ["Whether the plaintiff's Commercial List Reply alleging that the break costs provision was void or unenforceable as a penalty should be struck out." 'Whether cl 4 of the General Standard Terms could as a matter of law amount to a penalty where the Bank contended it was payable on early repayment and not on breach of contract.' 'Whether cl 4 necessarily provided a mechanism compensating the Bank only for real loss or a genuine pre-estimate of loss.' 'Whether there were live factual issues making strike out inappropriate.']

Ratio Decidendi

The Reply was not struck out because the Bank did not show that the plaintiff's penalty contention was bound to fail or almost incontestably bad. The meaning of breach of contract in the law of penalties was not necessarily settled, the first-instance Ringrow reasoning arguably allowed the plaintiff's contention, and there were live factual issues as to whether cl 4 necessarily involved a genuine pre-estimate of loss.

Court Disposition

Motion dismissed. Bank to pay the plaintiff's costs.

Orders

  • ['The Motion is dismissed.' "The Bank is to pay the plaintiff's costs."]