ING Bank (Australia) Ltd v Srbotech Pty Ltd [2013] NSWSC 361

ING Bank (Australia) Ltd v Srbotech Pty Ltd [2013] NSWSC 361

Leave was granted because it could not be said that the proposed amendments were futile or doomed to fail: the construction of the guarantee should not be determined on the application, the unconscionability case was at least arguable, and issues about consent, signatures and changes in guarantors required further determination. However, paragraphs 12 and 14 of the proposed cross-claim required amendment because the evidence did not support a positive allegation that the signature on the Second Variation was a forgery.

Jurisdiction
Australia
Judgment Date
19 April 2013
Procedural Posture
Interlocutory Application / Second Defendant's Application to File an Amended Defence and a Cross Claim Out of Time
Outcome
Leave granted to the Second Defendant to file an Amended Defence and a Cross-Claim out of time, subject to amendments to paragraphs 12 and 14 identified in the judgment.
Legal Topics
['amendment of Pleadings' 'cross Claim Out of Time' 'futility of Proposed Pleadings' 'guarantee' 'variation of Loan Agreement' 'unconscionability' 'alleged Forgery']
['civil Procedure' 'banking and Finance' 'guarantees' 'equity'] ['amendment of Pleadings' 'cross Claim Out of Time' 'futility of Proposed Pleadings' 'guarantee' 'variation of Loan Agreement' 'unconscionability' 'alleged Forgery']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application / Second Defendant's Application to File an Amended Defence and a Cross Claim Out of Time

Legal Issues

  1. 1 ['Whether the Second Defendant should be granted leave to file an Amended Defence.' 'Whether the Second Defendant should be granted leave to file a Cross-Claim out of time.' 'Whether the proposed defences and cross-claim were futile or doomed to fail.' 'Whether the terms of the guarantee bound the Second Defendant notwithstanding variations to the loan facility not consented to by him.' "Whether issues concerning the Second Defendant's signature and changes in guarantors made the unconscionability claim arguable." "Whether the proposed pleading that the Second Defendant's signature on the Second Variation was a forgery was properly supported."]

Ratio Decidendi

Leave was granted because it could not be said that the proposed amendments were futile or doomed to fail: the construction of the guarantee should not be determined on the application, the unconscionability case was at least arguable, and issues about consent, signatures and changes in guarantors required further determination. However, paragraphs 12 and 14 of the proposed cross-claim required amendment because the evidence did not support a positive allegation that the signature on the Second Variation was a forgery.

Court Disposition

Leave granted to the Second Defendant to file an Amended Defence and a Cross-Claim out of time, subject to amendments to paragraphs 12 and 14 identified in the judgment.

Orders

  • ['Grant leave to the Second Defendant to file an Amended Defence in the form of exhibit A and a cross-claim in the form of annexure B to the affidavit of Damian Grant Phair sworn 13 March 2013 with the amendments to paragraphs 12 and 14 that I have identified in this judgment.']