Pepper Home Loans Pty Limited v Tonadale Pty Limited [2008] NSWDC 10

Pepper Home Loans Pty Limited v Tonadale Pty Limited [2008] NSWDC 10

The First Defendant has admitted to making incorrect representations falling within the scope of the indemnity clause. There is no evidence that the Plaintiff failed to follow operational procedures or acted negligently, nor is there any break in causation. Therefore, there is no real prospect of the defence succeeding and judgment is entered for the Plaintiff on liability.

Parties
Plaintiff: Pepper Home Loans Pty Limited; First Defendant: Tonadale Pty Limited; Second Defendant: Kelvin Mark Skeers
Jurisdiction
Australia
Judgment Date
15 February 2008
Procedural Posture
Civil / Summary Judgment Application on Liability Against First Defendant; Quantum to Be Determined Later
Outcome
Judgment for the Plaintiff against the First Defendant on liability; damages to be assessed; pleaded defences based on negligence or contributory negligence struck out
Legal Topics
Indemnity, Misrepresentation, Summary Judgment, Reliance, Causation
Contract Law Commercial Law Indemnity Misrepresentation Summary Judgment Reliance Causation

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Parties

Pepper Home Loans Pty Limited

Plaintiff

Tonadale Pty Limited

First Defendant

Kelvin Mark Skeers

Second Defendant

Procedural Posture

Civil / Summary Judgment Application on Liability Against First Defendant; Quantum to Be Determined Later

Legal Issues

  1. 1 Whether First Defendant is liable under indemnity provisions of a sub-origination deed for losses arising from incorrect or misleading representations
  2. 2 Whether any defence based on causation, negligence or contributory negligence is available to the First Defendant

Ratio Decidendi

The First Defendant has admitted to making incorrect representations falling within the scope of the indemnity clause. There is no evidence that the Plaintiff failed to follow operational procedures or acted negligently, nor is there any break in causation. Therefore, there is no real prospect of the defence succeeding and judgment is entered for the Plaintiff on liability.

Court Disposition

Judgment for the Plaintiff against the First Defendant on liability; damages to be assessed; pleaded defences based on negligence or contributory negligence struck out

Orders

  • Order that the First Defendant indemnify the Plaintiff under clause 11.1(b) of the Sub-Origination Deed for losses, liabilities, costs, expenses, and damages in connection with specified incorrect representations
  • Order for assessment of damages as between Plaintiff and First Defendant