Commonwealth Bank of Australia v Usalj [2010] NSWSC 1105

Commonwealth Bank of Australia v Usalj [2010] NSWSC 1105

The bank proved, by admissions and affidavit evidence, that it entered into the facility agreements with the company, the company defaulted, the debt exceeded the guaranteed amount, each remaining defendant executed the relevant guarantee and acknowledgment of the varied facility, the relevant mortgages were executed and registered, demands were made for the maximum guaranteed amount, and no remaining defendant honoured the demands. The remaining defendants bore the onus on their substantive defences but led no evidence. The bank was therefore entitled to judgment for the guaranteed amount plus interest, but the Court was not satisfied that clause 5 justified indemnity costs.

Jurisdiction
Australia
Judgment Date
23 September 2010
Procedural Posture
Proceedings by a Bank to Enforce Guarantees and Related Mortgages / Ex Tempore Judgment After an Adjournment Application Was Refused and the First, Second, Third, Fifth and Seventh Defendants Withdrew From the Proceedings
Outcome
The notice of motion filed on 22 September 2010 for the first, second, third, fifth and seventh defendants was dismissed with costs, and judgment was entered for the bank against each of those defendants.
Legal Topics
['guarantees' 'enforcement of Guarantees' 'mortgages' 'facility Agreements' 'default' 'demand Under Section 57(2)(b) of the Real Property Act 1900 (nsw)' 'contracts Review Act 1980 (nsw)' 'unconscionable Conduct' 'non Est Factum' 'costs']
['contracts' 'banking and Finance' 'real Property' 'civil Procedure'] ['guarantees' 'enforcement of Guarantees' 'mortgages' 'facility Agreements' 'default' 'demand Under Section 57(2)(b) of the Real Property Act 1900 (nsw)' 'contracts Review Act 1980 (nsw)' 'unconscionable Conduct' 'non Est Factum' 'costs']

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Procedural Posture

Proceedings by a Bank to Enforce Guarantees and Related Mortgages / Ex Tempore Judgment After an Adjournment Application Was Refused and the First, Second, Third, Fifth and Seventh Defendants Withdrew From the Proceedings

Legal Issues

  1. 1 ['Whether the bank entered into the relevant facility agreements with Carlton Sheet Metal Pty Ltd and whether the company defaulted' "Whether each of the first, second, third, fifth and seventh defendants executed guarantees of the company's indebtedness and acknowledgments extending liability to varied facilities" 'Whether the relevant mortgages over real estate were executed and registered' 'Whether the bank made demand on each remaining defendant under the guarantees and section 57(2)(b) of the Real Property Act 1900 (NSW)' 'Whether any remaining defendant honoured the demand' 'Whether the bank was entitled to indemnity costs under clause 5 of the guarantees']

Ratio Decidendi

The bank proved, by admissions and affidavit evidence, that it entered into the facility agreements with the company, the company defaulted, the debt exceeded the guaranteed amount, each remaining defendant executed the relevant guarantee and acknowledgment of the varied facility, the relevant mortgages were executed and registered, demands were made for the maximum guaranteed amount, and no remaining defendant honoured the demands. The remaining defendants bore the onus on their substantive defences but led no evidence. The bank was therefore entitled to judgment for the guaranteed amount plus interest, but the Court was not satisfied that clause 5 justified indemnity costs.

Court Disposition

The notice of motion filed on 22 September 2010 for the first, second, third, fifth and seventh defendants was dismissed with costs, and judgment was entered for the bank against each of those defendants.

Orders

  • ['Judgment for the first plaintiff against each of the first, second, third, fifth and seventh defendants in the sum of $5,694,706.30, inclusive of interest to 23 September 2010.' 'Orders made in accordance with paragraphs 4, 5 and 6 of the form of order initialled by the judge and dated 23 September 2010.' 'Leave...