Bruton Pty Ltd, M. v NSW Land & Housing Corp & Anor [2009] NSWSC 1431

Bruton Pty Ltd, M. v NSW Land & Housing Corp & Anor [2009] NSWSC 1431

The Plaintiff established a serious question to be tried as to whether it was indebted to the First Defendant under the building contract and therefore as to whether the First Defendant was entitled under clause 5.5 to call upon the bank guarantee. The balance of convenience favoured the Plaintiff because calling on the guarantee would cause severe financial difficulties, while the First Defendant showed no hardship from a temporary restraint and the security would remain available pending final determination.

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Interlocutory Injunction in a Building Contract Dispute Concerning a Bank Guarantee / Motion by Summons for Interlocutory Injunction Pending Final Resolution of the Dispute
Outcome
Interlocutory injunction granted; costs of the motion ordered to be costs in the cause.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'building Contract Security' 'liquidated Damages' 'extensions of Time' 'rectification Costs']
['equity' 'contract Law' 'building and Construction' 'bank Guarantees'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'building Contract Security' 'liquidated Damages' 'extensions of Time' 'rectification Costs']

Case Brief

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Procedural Posture

Interlocutory Injunction in a Building Contract Dispute Concerning a Bank Guarantee / Motion by Summons for Interlocutory Injunction Pending Final Resolution of the Dispute

Legal Issues

  1. 1 ['Whether there was a serious question to be tried as to whether the Plaintiff was in breach of the contract in any material respect and whether any damages were sufficient to entitle the First Defendant to call upon the guarantee.' 'Whether the First Defendant was entitled under clause 5.5 of the building contract to call upon the bank guarantee.' 'Whether the Plaintiff abandoned the building contract by its letter dated 29 December 2008.' "Whether the Plaintiff was barred by clause 45.1(a) from disputing the First Defendant's failure or refusal to grant extensions of time." 'Whether the balance of convenience favoured granting an interlocutory injunction.']

Ratio Decidendi

The Plaintiff established a serious question to be tried as to whether it was indebted to the First Defendant under the building contract and therefore as to whether the First Defendant was entitled under clause 5.5 to call upon the bank guarantee. The balance of convenience favoured the Plaintiff because calling on the guarantee would cause severe financial difficulties, while the First Defendant showed no hardship from a temporary restraint and the security would remain available pending final determination.

Court Disposition

Interlocutory injunction granted; costs of the motion ordered to be costs in the cause.

Orders

  • ['Until further order the First Defendant its servants or agents be restrained from proceeding to demand, draw upon or recover from the Second Defendant, St George Bank Limited, any monies secured by a bank guarantee given on behalf of the Plaintiff and executed on or about 9 August 2007.' 'The costs of this motion...