Bates v Shen [2019] NSWSC 910

Bates v Shen [2019] NSWSC 910

The defendant admitted the obligation to pay $2,500 monthly interest on the $200,000 advanced under the First Loan Agreement and did not dispute that the instalments due on 5 May, 5 June and 5 July 2019 were unpaid, so summary judgment was entered for $7,500. The extra $5,000 paid in March 2019 was treated as discharging future admitted interest instalments, but the later instalments remained unpaid. The application for interim payments under s 82 failed because the Court was not satisfied, without determining the merits of the cross-claim and the overall dispute, that the plaintiff would obtain judgment for substantial damages against the defendant in the proceedings as a whole;...

Jurisdiction
Australia
Judgment Date
18 July 2019
Procedural Posture
Civil Procedure Application in Loan Agreement Proceedings / Plaintiff's Notice of Motion for Summary Judgment Under R 13.1 of the Uniform Civil Procedure Rules 2005 (nsw) and Interim Payment Under S 82 of the Civil Procedure Act 2005 (nsw)
Outcome
Summary judgment entered for the plaintiff in the sum of $7,500; the balance of the notice of motion, including the s 82 interim payment application, was dismissed.
Legal Topics
['summary Judgment' 'interim Payments' 'loan Agreement' 'interest Instalments' 'rectification' 'appropriation of Payments' 'costs']
['civil Procedure' 'contract Law' 'equity'] ['summary Judgment' 'interim Payments' 'loan Agreement' 'interest Instalments' 'rectification' 'appropriation of Payments' 'costs']

Case Brief

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Procedural Posture

Civil Procedure Application in Loan Agreement Proceedings / Plaintiff's Notice of Motion for Summary Judgment Under R 13.1 of the Uniform Civil Procedure Rules 2005 (nsw) and Interim Payment Under S 82 of the Civil Procedure Act 2005 (nsw)

Legal Issues

  1. 1 ['Whether summary judgment should be entered for unpaid interest instalments under the First Loan Agreement.' 'Whether the additional $5,000 paid by the defendant in March 2019 should be credited against future interest instalments.' "Whether the Court's power to order interim payments under s 82 of the Civil Procedure Act 2005 (NSW) was enlivened for future monthly interest instalments." 'Whether the defendant had established undue hardship or other discretionary reasons against an interim payment order.' 'Whether the maxim that he or she who seeks equity must do equity assisted the plaintiff.']

Ratio Decidendi

The defendant admitted the obligation to pay $2,500 monthly interest on the $200,000 advanced under the First Loan Agreement and did not dispute that the instalments due on 5 May, 5 June and 5 July 2019 were unpaid, so summary judgment was entered for $7,500. The extra $5,000 paid in March 2019 was treated as discharging future admitted interest instalments, but the later instalments remained unpaid. The application for interim payments under s 82 failed because the Court was not satisfied, without determining the merits of the cross-claim and the overall dispute, that the plaintiff would obtain judgment for substantial damages against the defendant in the proceedings as a whole;...

Court Disposition

Summary judgment entered for the plaintiff in the sum of $7,500; the balance of the notice of motion, including the s 82 interim payment application, was dismissed.

Orders

  • ['Enter summary judgment against the defendant in the sum of $7,500.' "Otherwise dismiss the plaintiff's notice of motion." "Order the defendant to pay 50% of the plaintiff's costs of the notice of motion and otherwise order that there be no order as to the costs of the notice of motion." 'Liberty to apply on...