Perpetual Trustee Company Ltd v Michael Wilson Kwok [2011] NSWSC 422

Perpetual Trustee Company Ltd v Michael Wilson Kwok [2011] NSWSC 422

The defendant had no arguable defence or cross-claim. The alleged misrepresentation claim could not operate as a set-off against the plaintiff's guarantee claim under the Westco principle, and the facility and guarantee documents required payment without set-off or counter-claim. Equitable set-off was unavailable because the alleged claim did not impeach the plaintiff's title to its demand. The misleading and deceptive conduct claim could not found a defence or cross-claim because the misrepresentations were made to World Best and the defendant did not personally rely on them in his capacity as guarantor; any loss to him arose indirectly from his guarantee and World Best's default....

Jurisdiction
Australia
Judgment Date
13 May 2011
Procedural Posture
Equity Division Commercial List Proceedings Concerning a Claim Under a Guarantee / Two Notices of Motion: the Plaintiff Sought Strike Out of the Commercial List Response and Summary Judgment Under Rule 13.1(1) of the Uniform Civil Procedure Rules 2005; the Defendant Sought Leave to File an Amended Commercial List Response and a Commercial List Statement of Cross Claim
Outcome
Leave refused to amend; defendant's Commercial List Response struck out; summary judgment entered for the plaintiff; defendant ordered to pay costs of the two notices of motion.
Legal Topics
['summary Judgment' 'guarantee' 'set Off' 'equitable Set Off' 'misleading and Deceptive Conduct' 'causation' 'no Set Off Clauses' 'ousting Jurisdiction']
['civil Procedure' 'equity' 'contract Law' 'consumer and Competition Law'] ['summary Judgment' 'guarantee' 'set Off' 'equitable Set Off' 'misleading and Deceptive Conduct' 'causation' 'no Set Off Clauses' 'ousting Jurisdiction']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceedings Concerning a Claim Under a Guarantee / Two Notices of Motion: the Plaintiff Sought Strike Out of the Commercial List Response and Summary Judgment Under Rule 13.1(1) of the Uniform Civil Procedure Rules 2005; the Defendant Sought Leave to File an Amended Commercial List Response and a Commercial List Statement of Cross Claim

Legal Issues

  1. 1 ["Whether the defendant had an arguable defence to the plaintiff's claim under the guarantee" 'Whether the defendant could rely on an alleged set-off in his own right against liability under the guarantee' 'Whether the guarantee and facility agreements excluded set-off or counter-claim' "Whether equitable set-off was available because the cross-claim impeached the plaintiff's title to its demand" 'Whether admitted misrepresentations made to World Best caused recoverable loss to the defendant as guarantor' 'Whether the proposed amended response and cross-claim disclosed a valid defence or cross-claim']

Ratio Decidendi

The defendant had no arguable defence or cross-claim. The alleged misrepresentation claim could not operate as a set-off against the plaintiff's guarantee claim under the Westco principle, and the facility and guarantee documents required payment without set-off or counter-claim. Equitable set-off was unavailable because the alleged claim did not impeach the plaintiff's title to its demand. The misleading and deceptive conduct claim could not found a defence or cross-claim because the misrepresentations were made to World Best and the defendant did not personally rely on them in his capacity as guarantor; any loss to him arose indirectly from his guarantee and World Best's default....

Court Disposition

Leave refused to amend; defendant's Commercial List Response struck out; summary judgment entered for the plaintiff; defendant ordered to pay costs of the two notices of motion.

Orders

  • ['Leave is refused to the defendant to file in these proceedings an Amended Commercial List Response and a Commercial List Statement of Cross Claim.' 'The Commercial List Response of the defendant is struck out and summary judgment should be entered in favour of the plaintiff, pursuant to rule 13.1(1) of the Uniform...