Lumby v Corportex [2004] NSWSC 924
No binding third variation to the loan agreement was effected, as the agreements required modifications in writing and no such executed writing exists; the defendants' asserted equitable set-off and cross-claim have no reasonable prospect of success. Summary judgment for the plaintiff is warranted.
- Jurisdiction
- Australia
- Judgment Date
- 08 October 2004
- Procedural Posture
- Motion for Summary Judgment / Judgment
- Outcome
- Summary judgment for plaintiff granted
- Legal Topics
- ['variation of Contracts' 'equitable Set Off' 'guarantee Enforcement' 'summary Judgment' 'trade Practices Act']
Case Brief
Summary, issues, holding and outcome
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Procedural Posture
Motion for Summary Judgment / Judgment
Legal Issues
- 1 ['Whether an arguable defence exists to summary judgment' 'Validity of alleged third variation to loan agreement' 'Availability of equitable set-off despite express contractual terms' 'Entitlement to leave to file cross-claim under s52 Trade Practices Act']
Ratio Decidendi
No binding third variation to the loan agreement was effected, as the agreements required modifications in writing and no such executed writing exists; the defendants' asserted equitable set-off and cross-claim have no reasonable prospect of success. Summary judgment for the plaintiff is warranted.
Court Disposition
Summary judgment for plaintiff granted
Orders
- ['Direct the entry of judgment for the plaintiff against the defendants' "Order the defendants to pay the plaintiff's costs" 'Sum for which plaintiff is entitled to judgment to be calculated and Short Minutes of Orders to be filed']
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