National Australia Bank Limited v Strategic Brands Australia Pty Limited [2012] NSWSC 682

National Australia Bank Limited v Strategic Brands Australia Pty Limited [2012] NSWSC 682

The plaintiff did not establish that the fourth defendant's defence should be struck out because there were real questions of fact and law as to whether the first defendant suffered loss by reason of the plaintiff's representations or breach of contract, whether that conduct caused the first defendant to fail to meet its obligations, and whether the third and fourth defendants' exposure under the guarantees was loss suffered by the plaintiff's conduct. The third defendant's explanation for delay was less than satisfactory, but the interests of justice required that the default judgment be set aside because he had the same arguable defence as the fourth defendant, inconsistent verdicts...

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Interlocutory Applications / Notices of Motion to Set Aside Default Judgment and to Strike Out Defence and Obtain Summary Judgment Heard Together
Outcome
Plaintiff's motion against the fourth defendant dismissed; fourth defendant granted leave to amend defence; default judgment against the third defendant set aside; third defendant granted leave to defend subject to costs and filing directions.
Legal Topics
['setting Aside Default Judgment' 'strike Out of Defence' 'summary Judgment' 'guarantees and Indemnities' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'arguable or Triable Issue']
['civil Procedure' 'banking and Finance' 'guarantees' 'corporations Law'] ['setting Aside Default Judgment' 'strike Out of Defence' 'summary Judgment' 'guarantees and Indemnities' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'arguable or Triable Issue']

Case Brief

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Procedural Posture

Interlocutory Applications / Notices of Motion to Set Aside Default Judgment and to Strike Out Defence and Obtain Summary Judgment Heard Together

Legal Issues

  1. 1 ["Whether the fourth defendant's defence disclosed an arguable or triable issue so that it should not be struck out." 'Whether the plaintiff should obtain summary judgment against the fourth defendant.' 'Whether the default judgment against the third defendant should be set aside despite delay.' "Whether the third and fourth defendants, as guarantors, had an arguable case that the plaintiff's conduct toward the first defendant caused loss by exposing them to liability under the guarantees."]

Ratio Decidendi

The plaintiff did not establish that the fourth defendant's defence should be struck out because there were real questions of fact and law as to whether the first defendant suffered loss by reason of the plaintiff's representations or breach of contract, whether that conduct caused the first defendant to fail to meet its obligations, and whether the third and fourth defendants' exposure under the guarantees was loss suffered by the plaintiff's conduct. The third defendant's explanation for delay was less than satisfactory, but the interests of justice required that the default judgment be set aside because he had the same arguable defence as the fourth defendant, inconsistent verdicts...

Court Disposition

Plaintiff's motion against the fourth defendant dismissed; fourth defendant granted leave to amend defence; default judgment against the third defendant set aside; third defendant granted leave to defend subject to costs and filing directions.

Orders

  • ["The notice of motion filed on 17 October 2011 by the plaintiff against the fourth defendant is dismissed. The plaintiff is to pay the fourth defendant's costs thereof." 'Leave is granted to the fourth defendant to amend his defence as he may be advised and to file and serve any amended defence by 4.00 pm on 6 July...