Enterprise Finance Solutions Pty Limited v Austec Pty Limited (No 2) [2013] FCA 619

Enterprise Finance Solutions Pty Limited v Austec Pty Limited (No 2) [2013] FCA 619

Respondents in each proceeding were entitled to relief under the Contracts Review Act or benefited from set-off under Trade Practices Act, leading to voiding of guarantee contracts and dismissal of claims. Costs awarded at 80% to reflect mixed success; applications for indemnity costs refused as rejection of settlement offers was not imprudent or unreasonable.

Parties
Applicant: Enterprise Finance Solutions Pty Limited; Respondent/first Cross Claimant: Austec Pty Limited; Respondent/second Cross Claimant: John Harrison; Respondent/third Cross Claimant: Lynette Harrison; Cross Respondent: Australian Equipment Rentals Pty Limited; Applicant/cross Respondent: Quikfund (Australia) Pty Limited; Respondent/first Cross Claimant: Airmark Consolidators Pty Limited; Respondent/second Cross Claimant: Mark Gonsalves
Jurisdiction
Australia
Judgment Date
05 June 2013
Procedural Posture
Civil / Post Trial; Costs and Final Orders
Outcome
Relief under Contracts Review Act granted; guarantee contracts declared void; damages claims dismissed; cross-claims dismissed except declarations; costs awarded at 80%; indemnity costs refused.
Legal Topics
Guarantee and Indemnity, Set Off, Costs, Contracts Review, Jurisdiction
Contracts Trade Practices Civil Procedure Guarantee and Indemnity Set Off Costs Contracts Review Jurisdiction

Case Brief

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Parties

Enterprise Finance Solutions Pty Limited

Applicant

Austec Pty Limited

Respondent/first Cross Claimant

John Harrison

Respondent/second Cross Claimant

Lynette Harrison

Respondent/third Cross Claimant

Australian Equipment Rentals Pty Limited

Cross Respondent

Quikfund (Australia) Pty Limited

Applicant/cross Respondent

Airmark Consolidators Pty Limited

Respondent/first Cross Claimant

Mark Gonsalves

Respondent/second Cross Claimant

Procedural Posture

Civil / Post Trial; Costs and Final Orders

Legal Issues

  1. 1 Entitlement to relief under Contracts Review Act 1980 (NSW)
  2. 2 Entitlement to set-off under s 73 Trade Practices Act 1974 (Cth)
  3. 3 Effectiveness of guarantee and indemnity contracts

Ratio Decidendi

Respondents in each proceeding were entitled to relief under the Contracts Review Act or benefited from set-off under Trade Practices Act, leading to voiding of guarantee contracts and dismissal of claims. Costs awarded at 80% to reflect mixed success; applications for indemnity costs refused as rejection of settlement offers was not imprudent or unreasonable.

Court Disposition

Relief under Contracts Review Act granted; guarantee contracts declared void; damages claims dismissed; cross-claims dismissed except declarations; costs awarded at 80%; indemnity costs refused.

Orders

  • The contract of guarantee and indemnity is void as and from the date it was made (per proceeding).
  • Applicant's proceeding dismissed.