Harrenvale Pty Limited v Jon Francis Kelly [2017] NSWSC 1223

Harrenvale Pty Limited v Jon Francis Kelly [2017] NSWSC 1223

The consequences of the asserted breaches pleaded by Mr Kelly, whether set-off or pro tanto discharge, are encompassed by cl 26(a), so any right to set-off or cross-claim is suspended until payment of all owed amounts. Summary judgment is appropriate because no arguable defence exists given the proper construction of the guarantee.

Parties
Plaintiff and Cross Defendant: Harrenvale Pty Ltd; First Defendant and Cross Claimant: Jon Francis Kelly; Second Defendant and Cross Claimant: Joanne Susan Kelly
Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Summary Judgment Application / Summary Judgment Hearing
Outcome
Summary judgment granted for the plaintiff against the first defendant.
Legal Topics
Suspension of Rights Clause, Set Off, Guarantee Liability, Mortgagee Sale, Summary Judgment
Contracts Civil Procedure Equity Suspension of Rights Clause Set Off Guarantee Liability Mortgagee Sale Summary Judgment

Case Brief

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Parties

Harrenvale Pty Ltd

Plaintiff and Cross Defendant

Jon Francis Kelly

First Defendant and Cross Claimant

Joanne Susan Kelly

Second Defendant and Cross Claimant

Procedural Posture

Summary Judgment Application / Summary Judgment Hearing

Legal Issues

  1. 1 Whether the suspension of rights clause in the guarantee prevents the first defendant's defence of set-off and cross-claim
  2. 2 Proper construction and operation of the suspension provision (cl 26(a))
  3. 3 Whether the cross-claim relating to equitable/set-off or pro tanto discharge can be raised

Ratio Decidendi

The consequences of the asserted breaches pleaded by Mr Kelly, whether set-off or pro tanto discharge, are encompassed by cl 26(a), so any right to set-off or cross-claim is suspended until payment of all owed amounts. Summary judgment is appropriate because no arguable defence exists given the proper construction of the guarantee.

Court Disposition

Summary judgment granted for the plaintiff against the first defendant.

Orders

  • Relevant pleadings struck out.
  • Summary judgment for Harrenvale Pty Ltd for the amount subject to the demand, with interest and costs.