Bank of Western Australia v Daleport Pty Ltd [2011] NSWSC 819

Bank of Western Australia v Daleport Pty Ltd [2011] NSWSC 819

Summary judgment is granted against the Defendants for the First Facility, Home Loan Facility, Bank Guarantee Facility, and against Mr Walton for the Second and Third Facilities as no viable defence is demonstrated. However, Daleport’s statutory and general law unconscionability defence as to the Second and Third Facilities cannot be rejected as obviously untenable and must proceed to trial, but only non-monetary relief is available due to prior security for costs orders and dismissal of cross-claims.

Jurisdiction
Australia
Judgment Date
04 November 2011
Procedural Posture
Interlocutory Application / Summary Judgment and Strikes Out Pleadings
Outcome
Summary judgment granted in part; matter to proceed to final hearing in part; defence amended.
Legal Topics
['summary Judgment' 'loan Facilities' 'guarantee' 'set Off' 'cross Claim' 'misrepresentation' 'unconscionable Conduct' 'statutory Remedies']
['procedure' 'contract' 'banking and Finance' 'equity'] ['summary Judgment' 'loan Facilities' 'guarantee' 'set Off' 'cross Claim' 'misrepresentation' 'unconscionable Conduct' 'statutory Remedies']

Case Brief

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Procedural Posture

Interlocutory Application / Summary Judgment and Strikes Out Pleadings

Legal Issues

  1. 1 ['Whether summary judgment should be granted for amounts due under loan facilities and guarantees' 'Whether defendant may advance statutory or equitable set-off and cross-claims despite contractual exclusions' 'Whether statutory and general law unconscionable conduct and misrepresentation defences are available' 'Whether guarantees require payment by guarantor before enforcement' 'Whether claim for damages under s 87 TPA may be maintained as a defence when cross-claim dismissed for lack of security']

Ratio Decidendi

Summary judgment is granted against the Defendants for the First Facility, Home Loan Facility, Bank Guarantee Facility, and against Mr Walton for the Second and Third Facilities as no viable defence is demonstrated. However, Daleport’s statutory and general law unconscionability defence as to the Second and Third Facilities cannot be rejected as obviously untenable and must proceed to trial, but only non-monetary relief is available due to prior security for costs orders and dismissal of cross-claims.

Court Disposition

Summary judgment granted in part; matter to proceed to final hearing in part; defence amended.

Orders

  • ['The parties should bring in Short Minutes to reflect these reasons.' 'Plaintiff given leave to tender any further certificates showing how much is owing in respect of the facilities for which summary judgment is to be given.' 'First Defendant given leave to serve (but not file) any proposed amended Defence within...