Metro Finance Pty Limited v Harrison [2022] NSWDC 303

Metro Finance Pty Limited v Harrison [2022] NSWDC 303

The second defendant was liable under the guarantee as the borrower breached its obligation by becoming insolvent, an event of default. The defence lacked arguable merit as repossession and set-off concerned the borrower's rights and the anti-set-off clause barred guarantor claims. The alleged promise not to sue was unsupported and not pleaded. The Dobbs certificate established quantum and public policy supported its contractual legitimacy. The requirements for summary judgment under r 13.1 were satisfied.

Jurisdiction
Australia
Judgment Date
01 August 2022
Procedural Posture
Civil / Summary Judgment Application
Outcome
summary judgment granted for plaintiff against second defendant
Legal Topics
['summary Judgment' 'strike Out' 'set Off' 'promise Not to Sue' 'repossession of Goods' 'guarantee Liability']
['guarantee and Indemnity' 'civil Procedure'] ['summary Judgment' 'strike Out' 'set Off' 'promise Not to Sue' 'repossession of Goods' 'guarantee Liability']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 ['Whether summary judgment should be granted against the second defendant as guarantor' 'Whether the defence of set-off based on repossession is arguable' 'Whether an alleged promise not to sue gives rise to an arguable defence' 'Whether proper demands were made under the agreement']

Ratio Decidendi

The second defendant was liable under the guarantee as the borrower breached its obligation by becoming insolvent, an event of default. The defence lacked arguable merit as repossession and set-off concerned the borrower's rights and the anti-set-off clause barred guarantor claims. The alleged promise not to sue was unsupported and not pleaded. The Dobbs certificate established quantum and public policy supported its contractual legitimacy. The requirements for summary judgment under r 13.1 were satisfied.

Court Disposition

summary judgment granted for plaintiff against second defendant

Orders

  • ['Summary judgment ordered in favour of plaintiff against second defendant for $79,919.91.' "Second defendant to pay plaintiff's costs of attendance at 13 July 2022 hearing on indemnity basis, subject to variation application within seven days."]