National Australia Bank Ltd v C & O Voukidis Pty Ltd [2015] NSWSC 185

National Australia Bank Ltd v C & O Voukidis Pty Ltd [2015] NSWSC 185

Absent satisfactory explanation for prior admissions and for amending or reintroducing defences and claims, leave to withdraw admissions and amend is refused. Paragraphs of the Defence and Cross-Claim relating to the Contracts Review Act, undue influence, unconscionability, Code of Banking Practice, and s 420A Corporations Act must be struck out as no reasonable defence or cause of action is disclosed, they are inconsistent with contract terms, and some are not available to guarantors. Leave is granted only to re-plead the use of funds defence (paragraph 48).

Parties
Plaintiff: National Australia Bank Ltd; Fourth Defendant: Olga Voukidis
Jurisdiction
Australia
Judgment Date
13 March 2015
Procedural Posture
Procedural and Other Ruling / Interlocutory (relating to Pleadings, Requests to Amend, and Strike Out Applications)
Outcome
Plaintiff’s applications to strike out are mostly allowed; Fourth Defendant's amendment application is dismissed.
Legal Topics
Amendment of Pleadings, Withdrawal of Admissions, Cross Claims, Strike Out of Pleadings, Guarantor Rights, Section 420 a Corporations Act, Contracts Review Act, Banking Code of Practice
Civil Procedure Guarantee and Indemnity Amendment of Pleadings Withdrawal of Admissions Cross Claims Strike Out of Pleadings Guarantor Rights Section 420 a Corporations Act +2 more

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Parties

National Australia Bank Ltd

Plaintiff

Olga Voukidis

Fourth Defendant

Procedural Posture

Procedural and Other Ruling / Interlocutory (relating to Pleadings, Requests to Amend, and Strike Out Applications)

Legal Issues

  1. 1 Whether leave should be granted to the Fourth Defendant to withdraw admissions in the defence
  2. 2 Whether amendments to the cross-claim and defence should be permitted, reinstating allegations previously abandoned or introducing new claims
  3. 3 Whether defences and cross-claims based on s 420A Corporations Act, Contracts Review Act, unconscionability, undue influence, and the Code of Banking Practice should be struck out

Ratio Decidendi

Absent satisfactory explanation for prior admissions and for amending or reintroducing defences and claims, leave to withdraw admissions and amend is refused. Paragraphs of the Defence and Cross-Claim relating to the Contracts Review Act, undue influence, unconscionability, Code of Banking Practice, and s 420A Corporations Act must be struck out as no reasonable defence or cause of action is disclosed, they are inconsistent with contract terms, and some are not available to guarantors. Leave is granted only to re-plead the use of funds defence (paragraph 48).

Court Disposition

Plaintiff’s applications to strike out are mostly allowed; Fourth Defendant's amendment application is dismissed.

Orders

  • Paragraphs 2, 3, 4, 5, 9A, 9B and 17 of Defence struck out to the extent they extend beyond admissions of their corresponding paragraphs in the Second Further Amended Statement of Claim.
  • Paragraphs 24 to 34 of Defence struck out.