Bridgecorp Finance Limited v Judith Comer & 2 Ors [2005] NSWSC 225

Bridgecorp Finance Limited v Judith Comer & 2 Ors [2005] NSWSC 225

The defence and cross-claim raised no real question to be determined because the defendants neither pleaded nor adduced evidence that the first mortgagee, Commonwealth Bank of Australia, was prepared to accept or would have agreed to any proposed sale of the Botany Road property, nor evidence of the first mortgage debt at the relevant times. Without that essential causal link, and with no evidence capable of showing breach by Bridgecorp Finance of any duty to act in good faith or conscionably, the defendants' case was so untenable that summary judgment for the plaintiff and dismissal of the cross-claim were appropriate, subject to quantification.

Jurisdiction
Australia
Judgment Date
18 March 2005
Procedural Posture
Equity Division Commercial List Proceedings Concerning Loan, Guarantee and Mortgage Security / Amended Notice of Motion for Summary Judgment and Dismissal of Cross Claim
Outcome
Subject to quantification, summary judgment was appropriate in favour of the plaintiff and the cross-claim was to be dismissed.
Legal Topics
['subrogation' 'equitable Duties of Mortgagee' 'second Mortgage Security' 'summary Judgment' 'guarantors' 'cross Claim Dismissal']
['equity' 'mortgage Law' 'guarantees' 'civil Procedure'] ['subrogation' 'equitable Duties of Mortgagee' 'second Mortgage Security' 'summary Judgment' 'guarantors' 'cross Claim Dismissal']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceedings Concerning Loan, Guarantee and Mortgage Security / Amended Notice of Motion for Summary Judgment and Dismissal of Cross Claim

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to summary judgment against the guarantors.' 'Whether the defence and cross-claim disclosed a real question of fact or law concerning breach by the plaintiff, as second mortgagee and creditor, of an equitable duty owed to the guarantors.' 'Whether the alleged loss from failure to discharge the second mortgage lacked a necessary causal link because the position of the first mortgagee was not pleaded or evidenced.' 'Whether the defendants had evidence capable of supporting an arguable breach of any duty to act in good faith or conscionably.']

Ratio Decidendi

The defence and cross-claim raised no real question to be determined because the defendants neither pleaded nor adduced evidence that the first mortgagee, Commonwealth Bank of Australia, was prepared to accept or would have agreed to any proposed sale of the Botany Road property, nor evidence of the first mortgage debt at the relevant times. Without that essential causal link, and with no evidence capable of showing breach by Bridgecorp Finance of any duty to act in good faith or conscionably, the defendants' case was so untenable that summary judgment for the plaintiff and dismissal of the cross-claim were appropriate, subject to quantification.

Court Disposition

Subject to quantification, summary judgment was appropriate in favour of the plaintiff and the cross-claim was to be dismissed.

Orders

  • ['Subject to issues of quantification to be stood over for further consideration, orders were to be made as sought in the amended notice of motion.' 'Proceedings stood over to Monday at 10.00am before Einstein J.']