Bank of Western Australia Limited v Usalj [2010] NSWSC 991

Bank of Western Australia Limited v Usalj [2010] NSWSC 991

The pleaded cross claim insofar as it relied on s 420A of the Corporations Act 2001 (Cth) was doomed to failure because that provision does not confer a right or remedy on a guarantor. The pleaded claims against the receiver for common law damages, damages under s 423, and damages under s 1324(10) were also defective: no factual basis for common law damages was pleaded, the basis for an inquiry under s 423 was not established, and no injunction under s 1324 was available because the sale events had been completed. Paragraphs 11 and 14 to 18 were therefore struck out, but leave was granted to replead because an equitable set-off or equitable remedy was arguable.

Jurisdiction
Australia
Judgment Date
07 September 2010
Procedural Posture
Strike Out Cross Claim; Guarantor; S 420 a Corporations Act 2001 (cth) / Notice of Motion by Plaintiff for Dismissal or Strike Out of Cross Claim
Outcome
Paragraphs 11 and 14 to 18 of the cross claim filed 17 April 2010 were struck out; leave was granted to file and serve an amended cross claim; the matter was listed for a status conference; costs were reserved.
Legal Topics
['strike Out of Pleading' 'summary Disposal' "receiver's Duty on Sale of Corporation Property" 'guarantor Standing Under S 420 a of the Corporations Act 2001 (cth)' 'equitable Set Off' 'common Law Damages and Statutory Remedies Against Receiver']
['civil Procedure' 'corporations Law' 'banking and Finance' 'guarantees'] ['strike Out of Pleading' 'summary Disposal' "receiver's Duty on Sale of Corporation Property" 'guarantor Standing Under S 420 a of the Corporations Act 2001 (cth)' 'equitable Set Off' 'common Law Damages and Statutory Remedies Against Receiver']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Strike Out Cross Claim; Guarantor; S 420 a Corporations Act 2001 (cth) / Notice of Motion by Plaintiff for Dismissal or Strike Out of Cross Claim

Legal Issues

  1. 1 ['Whether the cross claim should be dismissed or struck out under rules 13.4, 4.15 and 14.28 of the Uniform Civil Procedure Rules 2005.' 'Whether a guarantor has standing to bring a claim or obtain damages for breach of s 420A of the Corporations Act 2001 (Cth).' "Whether the cross claimant's claims for common law damages, damages under s 423, or damages under s 1324(10) of the Corporations Act 2001 against the receiver were adequately pleaded or available." 'Whether the cross claimant should be given leave to replead equitable remedies.']

Ratio Decidendi

The pleaded cross claim insofar as it relied on s 420A of the Corporations Act 2001 (Cth) was doomed to failure because that provision does not confer a right or remedy on a guarantor. The pleaded claims against the receiver for common law damages, damages under s 423, and damages under s 1324(10) were also defective: no factual basis for common law damages was pleaded, the basis for an inquiry under s 423 was not established, and no injunction under s 1324 was available because the sale events had been completed. Paragraphs 11 and 14 to 18 were therefore struck out, but leave was granted to replead because an equitable set-off or equitable remedy was arguable.

Court Disposition

Paragraphs 11 and 14 to 18 of the cross claim filed 17 April 2010 were struck out; leave was granted to file and serve an amended cross claim; the matter was listed for a status conference; costs were reserved.

Orders

  • ['Paragraphs 11 and 14 to 18 of the cross claim filed 17 April 2010 are struck out.' 'Grant leave to the cross claimant to file and serve an amended cross claim within 14 days.' 'The matter is listed for a status conference on 28 September 2010 at 9.00 am before the Registrar.' 'Costs are reserved.']