Kingsway Group Ltd v Looknear Pty Ltd [2009] NSWSC 1316

Kingsway Group Ltd v Looknear Pty Ltd [2009] NSWSC 1316

The second and third defendants do not have and cannot demonstrate the existence of an arguable defence to the plaintiff's claim as guarantors, based on the executed contracts and guarantees. The factual and documentary evidence shows they guaranteed both advances, and no sufficient explanation was given for delay or failure to appear. The application to set aside summary judgment was dismissed as futile.

Parties
Plaintiff: Kingsway Group Ltd; First Defendant: Looknear Pty Ltd; Second Defendant: Matthew Howard Paul Daniel; Third Defendant: Rusty Moran
Jurisdiction
Australia
Judgment Date
27 November 2009
Procedural Posture
Civil / Application to Set Aside Summary Judgment (motion)
Outcome
Application to set aside summary judgment dismissed. Costs awarded against second and third defendants.
Legal Topics
Summary Judgment, Guarantor Liability, Application to Set Aside Judgment, Adjournment, Defences on Merits
Practice and Procedure Contract Law Summary Judgment Guarantor Liability Application to Set Aside Judgment Adjournment Defences on Merits

Case Brief

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Parties

Kingsway Group Ltd

Plaintiff

Looknear Pty Ltd

First Defendant

Matthew Howard Paul Daniel

Second Defendant

Rusty Moran

Third Defendant

Procedural Posture

Civil / Application to Set Aside Summary Judgment (motion)

Legal Issues

  1. 1 Whether summary judgment against the second and third defendants should be set aside under UCPR 36.16(2)(b)
  2. 2 Whether second and third defendants have an arguable defence as guarantors for the plaintiff’s claim
  3. 3 Whether there was a defence on the merits, including issues of representations and statutory defences

Ratio Decidendi

The second and third defendants do not have and cannot demonstrate the existence of an arguable defence to the plaintiff's claim as guarantors, based on the executed contracts and guarantees. The factual and documentary evidence shows they guaranteed both advances, and no sufficient explanation was given for delay or failure to appear. The application to set aside summary judgment was dismissed as futile.

Court Disposition

Application to set aside summary judgment dismissed. Costs awarded against second and third defendants.

Orders

  • The notice of motion filed by the second and third defendants on 16 October 2009 is dismissed.
  • Second and third defendants to pay the plaintiff’s costs of the motion.