Australian & New Zealand Banking Group v RQA Accountants Pty Ltd & ors [2013] NSWSC 165

Australian & New Zealand Banking Group v RQA Accountants Pty Ltd & ors [2013] NSWSC 165

Defendants raised no arguable defence to ANZ's claim for possession as both mortgages and guarantees excluded set-offs and counterclaims; neither contractual nor fiduciary duties as alleged by defendants arose; alleged unconscionability and duty to warn were unsupported; and insurance cross-claim disclosed no cause of action. Orders made for possession, striking out defence and cross-claim, and for costs.

Jurisdiction
Australia
Judgment Date
21 March 2013
Procedural Posture
Principal Judgment / Final Judgment on Motions for Summary Judgment, to Strike Out, and to Dismiss
Outcome
Plaintiff granted summary judgment for possession; defence and cross-claims struck out or dismissed; defendants ordered to pay costs.
Legal Topics
['summary Judgment for Possession' 'effect of Mortgage Clauses on Defences' 'fiduciary Duties of Banks' 'unconscionability in Banking' 'nature of Bank Guarantees' 'striking Out Defences' 'insurance Contract Obligations']
['procedure' 'equity' 'guarantee'] ['summary Judgment for Possession' 'effect of Mortgage Clauses on Defences' 'fiduciary Duties of Banks' 'unconscionability in Banking' 'nature of Bank Guarantees' 'striking Out Defences' 'insurance Contract Obligations']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment on Motions for Summary Judgment, to Strike Out, and to Dismiss

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to summary judgment for possession of property under the terms of two mortgages' 'Whether the defences and cross-claims disclose any reasonable cause of action or arguable defence' 'Whether bank owed fiduciary or other duties to defendants beyond contract' 'Whether insurer (AAMI) was obliged to pay policy maximums or breached obligations']

Ratio Decidendi

Defendants raised no arguable defence to ANZ's claim for possession as both mortgages and guarantees excluded set-offs and counterclaims; neither contractual nor fiduciary duties as alleged by defendants arose; alleged unconscionability and duty to warn were unsupported; and insurance cross-claim disclosed no cause of action. Orders made for possession, striking out defence and cross-claim, and for costs.

Court Disposition

Plaintiff granted summary judgment for possession; defence and cross-claims struck out or dismissed; defendants ordered to pay costs.

Orders

  • ['Order for possession of the Property against the first and second defendants.' 'Plaintiff granted leave to issue writ of possession forthwith.' 'Defence filed 20 August 2012 struck out.' 'Whole of the first cross-claim filed on 22 August 2010 dismissed.' "First defendant's notice of motion filed on 3 September...