New Capital Finance Ltd (Receiver & Manager Appointed) v Lindsay McNeill Cogill & ors [2009] NSWSC 806

New Capital Finance Ltd (Receiver & Manager Appointed) v Lindsay McNeill Cogill & ors [2009] NSWSC 806

Although the defendants' failure to give discovery would not, by itself, justify striking out the defence and cross-claim because the discovery was not necessary, the defendants admitted the principal debt, stated they could not and would not defend the proceedings, and the plaintiff limited its claim to principal and simple interest at the contractual non-default rate. On that limited claim there was no viable defence, so summary judgment was appropriate.

Jurisdiction
Australia
Judgment Date
09 July 2009
Procedural Posture
Application Under UCPR R 12.7 to Strike Out Defences and Cross Claims and for Judgment Under a Loan Agreement / Notice of Motion for Summary Disposal Before the Duty Judge
Outcome
Summary judgment for the plaintiff against the first and second defendants for principal and simple contractual interest; the plaintiff's costs ordered against the first and second defendants; no order as to costs as between the first and second defendants and the third defendant.
Legal Topics
['summary Disposal' 'striking Out Defence and Cross Claim' 'discovery' 'loan Agreement' 'contractual Interest' 'default Interest and Penalties' 'unconscionable Conduct' 'mortgage Priority']
['civil Procedure' 'contract' 'equity' 'mortgages'] ['summary Disposal' 'striking Out Defence and Cross Claim' 'discovery' 'loan Agreement' 'contractual Interest' 'default Interest and Penalties' 'unconscionable Conduct' 'mortgage Priority']

Case Brief

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Procedural Posture

Application Under UCPR R 12.7 to Strike Out Defences and Cross Claims and for Judgment Under a Loan Agreement / Notice of Motion for Summary Disposal Before the Duty Judge

Legal Issues

  1. 1 ["Whether the first and second defendants' defences and cross-claims should be struck out under UCPR r 12.7 for not conducting the defence with due dispatch, including failure to give discovery." 'Whether the discovery sought was necessary for attaining justice for the plaintiff in the proceedings.' 'Whether summary judgment should be given for the principal sum and interest where the first and second defendants admitted the principal debt and indicated they did not intend to defend the proceedings.' 'Whether the contractual default interest rate of 144 percent per annum was seriously arguable to be a penalty.' 'Whether judgment should be limited to principal and simple interest at the contractual, non-default rate of 72 percent per annum.']

Ratio Decidendi

Although the defendants' failure to give discovery would not, by itself, justify striking out the defence and cross-claim because the discovery was not necessary, the defendants admitted the principal debt, stated they could not and would not defend the proceedings, and the plaintiff limited its claim to principal and simple interest at the contractual non-default rate. On that limited claim there was no viable defence, so summary judgment was appropriate.

Court Disposition

Summary judgment for the plaintiff against the first and second defendants for principal and simple contractual interest; the plaintiff's costs ordered against the first and second defendants; no order as to costs as between the first and second defendants and the third defendant.

Orders

  • ['Judgment that the first and second defendants pay the plaintiff the sum of $157,268.' "The first and second defendants pay the plaintiff's costs." 'No order as to costs as between the first and second defendants and the third defendant.']