Paneras v Eastern Suburbs Property Developments Pty Ltd [2008] NSWSC 110

Paneras v Eastern Suburbs Property Developments Pty Ltd [2008] NSWSC 110

The plaintiffs were entitled to have the Amended Defence struck out and to judgment because the Amended Defence, even with reliance on the Cross-Claim, did not plead any matter supporting the alleged voidness of the Deed of Guarantee and Indemnity or otherwise disclose an arguable defence to the plaintiffs' claim on the guarantee. The alleged oral contract and representations preceded and were overtaken by the executed deeds, there was no pleaded ambiguity or rectification claim, and the plaintiffs' affidavit evidence establishing execution of the documents and the $440,000 advance was not challenged by cross-examination.

Jurisdiction
Australia
Judgment Date
26 February 2008
Procedural Posture
Common Law Claim Concerning a Loan Deed and Deed of Guarantee and Indemnity / Plaintiffs' Application to Strike Out the Second Defendant's Amended Defence and for Entry of Judgment
Outcome
Amended defence struck out; judgment entered for the plaintiffs against the second defendant in the sum of $1,297,819; second defendant ordered to pay the costs of the claim brought by the plaintiffs against him.
Legal Topics
['striking Out Defence' 'summary Judgment' 'default Judgment' 'loan Deed' 'guarantee and Indemnity' 'cross Claim']
['common Law' 'civil Procedure' 'contract Law'] ['striking Out Defence' 'summary Judgment' 'default Judgment' 'loan Deed' 'guarantee and Indemnity' 'cross Claim']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Common Law Claim Concerning a Loan Deed and Deed of Guarantee and Indemnity / Plaintiffs' Application to Strike Out the Second Defendant's Amended Defence and for Entry of Judgment

Legal Issues

  1. 1 ["Whether the second defendant's Amended Defence disclosed a reasonable defence to the plaintiffs' claim on the guarantee." 'Whether the plaintiffs were entitled to judgment against the second defendant in the sum of $1,297,819.' 'Whether matters pleaded in the Cross-Claim supported the asserted voidness of the Deed of Guarantee and Indemnity.']

Ratio Decidendi

The plaintiffs were entitled to have the Amended Defence struck out and to judgment because the Amended Defence, even with reliance on the Cross-Claim, did not plead any matter supporting the alleged voidness of the Deed of Guarantee and Indemnity or otherwise disclose an arguable defence to the plaintiffs' claim on the guarantee. The alleged oral contract and representations preceded and were overtaken by the executed deeds, there was no pleaded ambiguity or rectification claim, and the plaintiffs' affidavit evidence establishing execution of the documents and the $440,000 advance was not challenged by cross-examination.

Court Disposition

Amended defence struck out; judgment entered for the plaintiffs against the second defendant in the sum of $1,297,819; second defendant ordered to pay the costs of the claim brought by the plaintiffs against him.

Orders

  • ['The Amended Defence is struck out.' 'Entry of judgment for the plaintiffs against the second defendant in the sum of $1,297,819 is directed.' 'The second defendant is to pay the costs of the claim brought by the plaintiff against him.' 'The exhibits may be returned.']