Lipa v Metabolic & Anor [2006] NSWSC 997

Lipa v Metabolic & Anor [2006] NSWSC 997

Taking Metabolic's evidence at its highest on the summary judgment application, the pre-signed cheque was arguably completed outside the authority given by Mr Leonard, so s 18(2) of the Cheques Act 1986 (Cth) provided an arguable defence to enforcement of the cheque. Because Metabolic had an arguable defence, the plaintiff's summary judgment motion had to be dismissed and the matter should go to trial.

Jurisdiction
Australia
Judgment Date
27 September 2006
Procedural Posture
Summary Judgment on Part of Claim Dishonoured Cheque / Plaintiff's Notice of Motion Filed 5 May 2006 for Judgment Under Uniform Civil Procedure Rules 2005 (nsw) R 13.1(1)
Outcome
The plaintiff's notice of motion filed 5 May 2006 was dismissed.
Legal Topics
['summary Judgment' 'dishonoured Cheque' 'inchoate Instruments' 'holder in Due Course' 'conditional Delivery of Cheque' 'defective Goods Cross Claim']
['civil Procedure' 'commercial Law' 'cheques and Negotiable Instruments' 'sale of Goods'] ['summary Judgment' 'dishonoured Cheque' 'inchoate Instruments' 'holder in Due Course' 'conditional Delivery of Cheque' 'defective Goods Cross Claim']

Case Brief

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Procedural Posture

Summary Judgment on Part of Claim Dishonoured Cheque / Plaintiff's Notice of Motion Filed 5 May 2006 for Judgment Under Uniform Civil Procedure Rules 2005 (nsw) R 13.1(1)

Legal Issues

  1. 1 ['Whether the plaintiff should have summary judgment against the first defendant for $389,936.25 on the dishonoured cheque claim.' 'Whether the first defendant had an arguable defence under s 18(2) of the Cheques Act 1986 (Cth) because the signed blank cheque was completed outside the authority given.' 'Whether ss 27 and 28 of the Cheques Act 1986 (Cth) could permit the first defendant to show that delivery of the cheque was conditional or ineffective.' 'Whether s 54 of the Sale of Goods Act 1923 (NSW) provided a defence to the dishonoured cheque claim.']

Ratio Decidendi

Taking Metabolic's evidence at its highest on the summary judgment application, the pre-signed cheque was arguably completed outside the authority given by Mr Leonard, so s 18(2) of the Cheques Act 1986 (Cth) provided an arguable defence to enforcement of the cheque. Because Metabolic had an arguable defence, the plaintiff's summary judgment motion had to be dismissed and the matter should go to trial.

Court Disposition

The plaintiff's notice of motion filed 5 May 2006 was dismissed.

Orders

  • ["The plaintiff's notice of motion filed 5 May 2006 is dismissed." "The plaintiff is to pay the defendants' costs as agreed or assessed."]