Knauf Plasterboard Pty Ltd v Hardy (No 2) [2017] FCA 808

Knauf Plasterboard Pty Ltd v Hardy (No 2) [2017] FCA 808

The paragraphs of Mr Hardy's amended defence that alleged Knauf’s failure to promptly perfect its security interest do not disclose a reasonable defence. The Deed of Forbearance and related documents, properly construed, do not impose a specific obligation on Knauf to perfect the security interest, nor does any breach of a general obligation affect the continued operation of the guarantees. Further, the express terms of the Repayment Guarantee preclude both any reduction of liability for failure to perfect the security and the availability of set-off as a defence.

Parties
Applicant: Knauf Plasterboard Pty Ltd; First Respondent: Mark Darryl Hardy; Second Respondent: Andre Blignaut; Third Respondent: The Estate of the Late Ross McGinn
Jurisdiction
Australia
Judgment Date
20 July 2017
Procedural Posture
Strike Out Application / Interlocutory Judgment
Outcome
Application to strike out granted
Legal Topics
Strike Out of Defence, Equitable Set Off, Contractual Construction, Guarantee and Indemnity, Perfection of Security Interests
Practice and Procedure Commercial Law Corporations Strike Out of Defence Equitable Set Off Contractual Construction Guarantee and Indemnity Perfection of Security Interests

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Parties

Knauf Plasterboard Pty Ltd

Applicant

Mark Darryl Hardy

First Respondent

Andre Blignaut

Second Respondent

The Estate of the Late Ross McGinn

Third Respondent

Procedural Posture

Strike Out Application / Interlocutory Judgment

Legal Issues

  1. 1 Whether paragraphs 19 to 26 of the first respondent's amended defence disclose a reasonable defence
  2. 2 Whether Knauf had a contractual obligation under the Deed of Forbearance to perfect the security interest promptly
  3. 3 Whether any breach of that obligation by Knauf gives rise to an equitable set-off or defence for the respondent

Ratio Decidendi

The paragraphs of Mr Hardy's amended defence that alleged Knauf’s failure to promptly perfect its security interest do not disclose a reasonable defence. The Deed of Forbearance and related documents, properly construed, do not impose a specific obligation on Knauf to perfect the security interest, nor does any breach of a general obligation affect the continued operation of the guarantees. Further, the express terms of the Repayment Guarantee preclude both any reduction of liability for failure to perfect the security and the availability of set-off as a defence.

Court Disposition

Application to strike out granted

Orders

  • Paragraphs 19 to 26 of the first respondent's amended defence filed on 9 November 2016 are struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth)
  • The first respondent (Mr Hardy) is to pay the applicant's (Knauf's) costs of paragraph 4 of its amended interlocutory application filed on 6 October 2016