Hume Plasterboard Pty Ltd v Lin Betty Building Group Pty Ltd [2022] NSWSC 89

Hume Plasterboard Pty Ltd v Lin Betty Building Group Pty Ltd [2022] NSWSC 89

Summary judgment was appropriate against the first defendant because it accepted liability for $1,331,240.64 and had no arguable defence; any deficiency in pleading did not justify refusing summary judgment given the overriding purpose. Summary judgment was also appropriate against the second defendant because the only pleaded basis for discharge of the 2017 Guarantee was the settlement of the 2019 Proceedings and payment of $1,380,000. As a matter of law, that payment of past indebtedness, without a written withdrawal or release and without compliance with cl 6 of the 2017 Guarantee, did not discharge the continuing guarantee or the charge to which s 23C of the Conveyancing Act 1919...

Jurisdiction
Australia
Judgment Date
09 February 2022
Procedural Posture
Civil Procedure Application for Summary Judgment in Supreme Court of New South Wales Common Law Proceedings / Notice of Motion for Summary Judgment Filed on 15 September 2021 and Heard on 9 February 2022
Outcome
Summary judgment entered for the plaintiff against the first and second defendants for part of the plaintiff's claim, with costs of the notice of motion; matter stood over for further directions.
Legal Topics
['summary Judgment' 'overriding Purpose' 'just, Quick and Cheap Resolution of Proceedings' 'settlement of Earlier Proceedings' 'discharge of Guarantee' 'security Charge Over Property' 'costs Following the Event']
['civil Procedure' 'contract Law' 'guarantees and Indemnities' 'conveyancing'] ['summary Judgment' 'overriding Purpose' 'just, Quick and Cheap Resolution of Proceedings' 'settlement of Earlier Proceedings' 'discharge of Guarantee' 'security Charge Over Property' 'costs Following the Event']

Case Brief

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Procedural Posture

Civil Procedure Application for Summary Judgment in Supreme Court of New South Wales Common Law Proceedings / Notice of Motion for Summary Judgment Filed on 15 September 2021 and Heard on 9 February 2022

Legal Issues

  1. 1 ["Whether the plaintiff was entitled to summary judgment against the first defendant for $1,331,240.64 despite the first defendant's pleading point that the pleaded contract had come to an end." "Whether the settlement of the 2019 Proceedings by payment of $1,380,000 raised a triable issue that the second defendant's 2017 Guarantee had been discharged." 'Whether the existence of an arguable defence by the third defendant was a reason to refuse summary judgment against the first and second defendants.' 'Whether costs of the summary judgment motion should follow the event.']

Ratio Decidendi

Summary judgment was appropriate against the first defendant because it accepted liability for $1,331,240.64 and had no arguable defence; any deficiency in pleading did not justify refusing summary judgment given the overriding purpose. Summary judgment was also appropriate against the second defendant because the only pleaded basis for discharge of the 2017 Guarantee was the settlement of the 2019 Proceedings and payment of $1,380,000. As a matter of law, that payment of past indebtedness, without a written withdrawal or release and without compliance with cl 6 of the 2017 Guarantee, did not discharge the continuing guarantee or the charge to which s 23C of the Conveyancing Act 1919...

Court Disposition

Summary judgment entered for the plaintiff against the first and second defendants for part of the plaintiff's claim, with costs of the notice of motion; matter stood over for further directions.

Orders

  • ["Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.1, that there be summary judgment for the plaintiff against the first and second defendants for part of the plaintiff's claim, in the sum of $1,331,240.64." "Order the first and second defendants to pay the plaintiff's costs of its notice of motion...