Franks v Equitiloan Securities Pty Limited [2007] NSWSC 812

Franks v Equitiloan Securities Pty Limited [2007] NSWSC 812

Leave to amend the cross-claim to substitute the plaintiff as cross-defendant was refused because, as a matter of law and authority, the only 'equities' available to an obligor against an assignee are those that reduce or extinguish the assigned claim, and do not permit recovery of damages from the assignee in excess of the claim; thus, the amendment sought was futile.

Jurisdiction
Australia
Judgment Date
06 July 2007
Procedural Posture
Application for Leave to Amend Cross Claim in Equity Proceedings / Hearing on Application for Leave to Amend
Outcome
Application for leave to amend cross-claim refused
Legal Topics
['assignment of Choses in Action' 'equities and Set Off' 'amendment of Pleadings' 'defences to Claims by Assignee']
['property Law' 'civil Procedure' 'equity'] ['assignment of Choses in Action' 'equities and Set Off' 'amendment of Pleadings' 'defences to Claims by Assignee']

Case Brief

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Procedural Posture

Application for Leave to Amend Cross Claim in Equity Proceedings / Hearing on Application for Leave to Amend

Legal Issues

  1. 1 ['Whether ‘equities’ under section 12 of the Conveyancing Act 1919 permit an obligor to set up a cross-claim against the assignee in excess of the amount of the assigned obligation' 'Whether leave should be granted to amend the cross-claim to substitute the plaintiff as cross-defendant for an amount exceeding the assigned claim' 'Whether amendment would be futile given law on cross-claims against an assignee']

Ratio Decidendi

Leave to amend the cross-claim to substitute the plaintiff as cross-defendant was refused because, as a matter of law and authority, the only 'equities' available to an obligor against an assignee are those that reduce or extinguish the assigned claim, and do not permit recovery of damages from the assignee in excess of the claim; thus, the amendment sought was futile.

Court Disposition

Application for leave to amend cross-claim refused

Orders

  • ['Leave to amend cross-claim by substituting Mr Franks as cross-defendant refused' 'No order as to costs thrown away by the vacation of hearing; each party to bear their own costs of vacation' 'Defendant to pay one half of the plaintiff’s costs of the application for leave to amend, including of today' 'Proceedings...