National Mutual Funds Management Limited -v- Michael Wilson Kwok [2011] NSWSC 885

National Mutual Funds Management Limited -v- Michael Wilson Kwok [2011] NSWSC 885

The defendant has no defence to the plaintiff's claim as the guarantee covered the relevant debt, the reduction in the amount owed was properly calculated, and the absence of notice under s 57(2) Real Property Act 1900 (NSW) does not provide a defence for the guarantor who was not the mortgagor.

Jurisdiction
Australia
Judgment Date
09 August 2011
Procedural Posture
Summary Judgment Application / Decision on Summary Judgment
Outcome
Summary judgment for the first plaintiff; motion by second plaintiff dismissed
Legal Topics
['summary Judgment' 'guarantee' 'loan Agreement' 'real Property Act 1900 (nsw)']
['guarantee and Indemnity' 'corporations Law'] ['summary Judgment' 'guarantee' 'loan Agreement' 'real Property Act 1900 (nsw)']

Case Brief

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Procedural Posture

Summary Judgment Application / Decision on Summary Judgment

Legal Issues

  1. 1 ['Whether the defendant is liable under the guarantee where the deed of loan was executed after the guarantee' 'Whether summary judgment should be entered given the adjusted amount claimed' 'Effect of failure to serve notice under s 57(2) Real Property Act 1900 (NSW) on defendant as guarantor']

Ratio Decidendi

The defendant has no defence to the plaintiff's claim as the guarantee covered the relevant debt, the reduction in the amount owed was properly calculated, and the absence of notice under s 57(2) Real Property Act 1900 (NSW) does not provide a defence for the guarantor who was not the mortgagor.

Court Disposition

Summary judgment for the first plaintiff; motion by second plaintiff dismissed

Orders

  • ['Summary judgment for the first plaintiff against the defendant in the sum of $3,043,785.93.' 'The second plaintiff is not entitled to any relief on the Notice of Motion; its application is dismissed.' "The defendant is to pay the first plaintiff's costs, less the amount of $175." 'The second plaintiff is not...