Benchmark (Aust) Pty Limited & Anor v National Australia Bank Limited [2012] NSWCA 130

Benchmark (Aust) Pty Limited & Anor v National Australia Bank Limited [2012] NSWCA 130

Leave to appeal was refused because the applicants had no reasonable prospect of showing error in the summary judgment. The only defence advanced to the summary judgment application was that the 2008 Guarantee supplanted the 2007 Guarantee. On the objective construction of the guarantees, especially cl 20 of the 2008 Guarantee, the 2008 Guarantee was additional to the 2007 Guarantee and did not discharge it. The applicants' subjective understanding, conversations not involving NAB, and NAB's later reliance on the 2008 Guarantee could not create an arguable defence.

Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Application for Leave to Appeal Against Summary Judgment / Court of Appeal Application for Leave to Appeal From Interlocutory Judgment
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['summary Judgment' 'leave to Appeal' 'guarantees and Indemnities' 'contract Construction and Interpretation' 'subjective Intention' 'post Contractual Conduct']
['practice and Procedure' 'contracts'] ['summary Judgment' 'leave to Appeal' 'guarantees and Indemnities' 'contract Construction and Interpretation' 'subjective Intention' 'post Contractual Conduct']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Summary Judgment / Court of Appeal Application for Leave to Appeal From Interlocutory Judgment

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to appeal from summary judgment entered on the 2007 Guarantee.' 'Whether the primary Judge applied the correct test for summary judgment under General Steel and Spencer v Commonwealth.' 'Whether the primary Judge overlooked pleaded defences or a set-off based on alleged misleading, deceptive or unconscionable conduct concerning the Camden Facility.' 'Whether the 2008 Guarantee supplanted or discharged the 2007 Guarantee.' "Whether conversations not involving NAB and NAB's later reliance on the 2008 Guarantee were relevant to construing the guarantees."]

Ratio Decidendi

Leave to appeal was refused because the applicants had no reasonable prospect of showing error in the summary judgment. The only defence advanced to the summary judgment application was that the 2008 Guarantee supplanted the 2007 Guarantee. On the objective construction of the guarantees, especially cl 20 of the 2008 Guarantee, the 2008 Guarantee was additional to the 2007 Guarantee and did not discharge it. The applicants' subjective understanding, conversations not involving NAB, and NAB's later reliance on the 2008 Guarantee could not create an arguable defence.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal is dismissed.' "The applicants to pay the respondent's costs of the application for leave to appeal."]