Perpetual Trustee Company Limited v Triprush Pty Limited [2010] NSWSC 861

Perpetual Trustee Company Limited v Triprush Pty Limited [2010] NSWSC 861

The fourth defendant admitted the loan, his guarantee and the borrowers' defaults. Although it was at least arguable that the lender's certificate did not comply with clause 9.3 of the Deed of Guarantee, the plaintiff did not need to rely on it because the account records evidenced that $788,351.37 was due and payable under the guarantee. The pleaded equitable set-off was doomed to failure because the Montpensier cross-claim, even if successful, could only relieve Mr Baker of liability under a different guarantee and would not create surplus funds available for set-off in these proceedings. The amended defence was therefore struck out and judgment entered for the plaintiff against the...

Jurisdiction
Australia
Judgment Date
05 August 2010
Procedural Posture
Summary Judgment Guarantee / Plaintiff's Notice of Motion for Summary Judgment Against the Fourth Defendant and Costs; Application to Strike Out Amended Defence
Outcome
The amended defence was struck out, judgment was entered for the plaintiff against the fourth defendant for $788,351.37, and costs were reserved.
Legal Topics
['summary Judgment' 'strike Out of Defence' 'guarantee Liability' 'equitable Set Off' "lender's Certificate" 'contractual Costs']
['civil Procedure' 'guarantee' 'banking and Finance' 'costs'] ['summary Judgment' 'strike Out of Defence' 'guarantee Liability' 'equitable Set Off' "lender's Certificate" 'contractual Costs']

Case Brief

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Procedural Posture

Summary Judgment Guarantee / Plaintiff's Notice of Motion for Summary Judgment Against the Fourth Defendant and Costs; Application to Strike Out Amended Defence

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to summary judgment against the fourth defendant under rule 13.1 of the Uniform Civil Procedure Rules 2005 for the debt claimed under the guarantee.' 'Whether the amended defence pleading equitable set-off disclosed a triable defence or was doomed to failure.' "Whether the plaintiff could prove the amount owing under the guarantee notwithstanding questions about compliance of the lender's certificate with clause 9.3 of the Deed of Guarantee." 'Whether costs should be ordered on a solicitor/client basis under clause 9.1 of the Deed of Guarantee.']

Ratio Decidendi

The fourth defendant admitted the loan, his guarantee and the borrowers' defaults. Although it was at least arguable that the lender's certificate did not comply with clause 9.3 of the Deed of Guarantee, the plaintiff did not need to rely on it because the account records evidenced that $788,351.37 was due and payable under the guarantee. The pleaded equitable set-off was doomed to failure because the Montpensier cross-claim, even if successful, could only relieve Mr Baker of liability under a different guarantee and would not create surplus funds available for set-off in these proceedings. The amended defence was therefore struck out and judgment entered for the plaintiff against the...

Court Disposition

The amended defence was struck out, judgment was entered for the plaintiff against the fourth defendant for $788,351.37, and costs were reserved.

Orders

  • ['The amended defence filed 1 June 2010 is struck out.' 'Judgment is entered that the fourth defendant is to pay to the plaintiff the sum of $788,351.37.' 'Costs are reserved.']