Bank of Western Australia Limited v Leila El-Khoury & Ors [2013] NSWSC 157

Bank of Western Australia Limited v Leila El-Khoury & Ors [2013] NSWSC 157

It is arguable on the evidence that the Consumer Credit Code applies to the First Loan; the Bank has not shown that the defendants cannot maintain its application, nor demonstrated compliance with the Code. Serious factual and legal disputes remain concerning the guarantees and alleged Bank representations. Accordingly, summary judgment should not be granted, and the cross-claim not struck out at this stage. Strict directions for the further conduct of proceedings are appropriate.

Parties
Plaintiff/respondent: Bank of Western Australia Limited; First Defendant/applicant: Leila El-Khoury; Second Defendant/applicant: Yves Louis El-Khoury; Third Defendant/applicant: El-May Pty Ltd (Receivers and Managers appointed); Fourth Defendant/applicant: El-Khoury Family Company Pty Ltd (Receivers and Managers appointed); Fifth Defendant/applicant: El-Khoury Family Child Care Centres Pty Limited
Jurisdiction
Australia
Judgment Date
04 March 2013
Procedural Posture
Interlocutory Application / Summary Judgment Application and Cross Claim Strike Out Motion
Outcome
Summary judgment not granted; cross-claim not struck out; further directions given for proceedings.
Legal Topics
Summary Judgment, Guarantees, Cross Claims, Banking Practice, Consumer Credit Code, Striking Out for Want of Prosecution
Banking and Finance Law Civil Procedure Summary Judgment Guarantees Cross Claims Banking Practice Consumer Credit Code Striking Out for Want of Prosecution

Case Brief

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Parties

Bank of Western Australia Limited

Plaintiff/respondent

Leila El-Khoury

First Defendant/applicant

Yves Louis El-Khoury

Second Defendant/applicant

El-May Pty Ltd (Receivers and Managers appointed)

Third Defendant/applicant

El-Khoury Family Company Pty Ltd (Receivers and Managers appointed)

Fourth Defendant/applicant

El-Khoury Family Child Care Centres Pty Limited

Fifth Defendant/applicant

Procedural Posture

Interlocutory Application / Summary Judgment Application and Cross Claim Strike Out Motion

Legal Issues

  1. 1 Whether summary judgment should be granted to the Bank against the guarantors in light of guarantee clauses
  2. 2 Whether the Cross-Claim should be struck out for want of prosecution
  3. 3 Whether the Consumer Credit Code applies to the First Loan

Ratio Decidendi

It is arguable on the evidence that the Consumer Credit Code applies to the First Loan; the Bank has not shown that the defendants cannot maintain its application, nor demonstrated compliance with the Code. Serious factual and legal disputes remain concerning the guarantees and alleged Bank representations. Accordingly, summary judgment should not be granted, and the cross-claim not struck out at this stage. Strict directions for the further conduct of proceedings are appropriate.

Court Disposition

Summary judgment not granted; cross-claim not struck out; further directions given for proceedings.

Orders

  • Summary judgment for the plaintiff is refused.
  • The cross-claim is not struck out for want of prosecution at this stage.