Eureka 2 Holdings Pty Limited v Palasty [2010] NSWSC 526

Eureka 2 Holdings Pty Limited v Palasty [2010] NSWSC 526

Clauses 8.1(a) and 12.1(a) of the guarantee agreements expressly exclude the defendant’s right to set-off or counterclaim, preventing him from reducing or delaying payment to the plaintiff. Given the exclusion and the lack of substantive defence or evidence to the contrary, no triable issue is raised. The set-off claimed by the defendant cannot succeed and the cross-claim fails as it relies on the same untenable premise.

Parties
Plaintiff: Eureka 2 Holdings Pty Limited; Defendant: John Palasty (aka John Horvat)
Jurisdiction
Australia
Judgment Date
26 May 2010
Procedural Posture
Civil / Summary Judgment Application
Outcome
Judgment for the plaintiff; cross-claim struck out; costs awarded to plaintiff.
Legal Topics
Summary Judgment, Loan Guarantee, Set Off, Cross Claim, Triable Issue
Practice and Procedure Summary Judgment Loan Guarantee Set Off Cross Claim Triable Issue

Case Brief

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Parties

Eureka 2 Holdings Pty Limited

Plaintiff

John Palasty (aka John Horvat)

Defendant

Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 Whether the plaintiff is entitled to summary judgment for the outstanding loan guaranteed by the defendant.
  2. 2 Whether clauses in the guarantee agreements preclude the defendant's claimed right of set-off.
  3. 3 Whether any triable issues are raised by the defence.

Ratio Decidendi

Clauses 8.1(a) and 12.1(a) of the guarantee agreements expressly exclude the defendant’s right to set-off or counterclaim, preventing him from reducing or delaying payment to the plaintiff. Given the exclusion and the lack of substantive defence or evidence to the contrary, no triable issue is raised. The set-off claimed by the defendant cannot succeed and the cross-claim fails as it relies on the same untenable premise.

Court Disposition

Judgment for the plaintiff; cross-claim struck out; costs awarded to plaintiff.

Orders

  • Judgment for the plaintiff against the defendant in the sum of $1,513,331.69.
  • The cross-claim filed on 16 November 2009 is struck out.