Super Vision Resources Ltd v Xu (No 2) [2019] NSWSC 389

Super Vision Resources Ltd v Xu (No 2) [2019] NSWSC 389

Super Vision was entitled to judgment because Mr Xu did not dispute that the money was lent or that it had not been fully repaid, his positive defences were treated as abandoned when no submissions were made in support of them, the principal owing was agreed, and the interest calculation was admitted without objection. The Loan Agreement also entitled Super Vision to indemnity costs, and no separate order for post judgment interest was necessary because s 101 of the Civil Procedure Act 2005 (NSW) applied.

Jurisdiction
Australia
Judgment Date
10 April 2019
Procedural Posture
Equity Commercial List Proceeding for Enforcement of Guarantee and Indemnity / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff; defendant's First Cross-Claim Cross-Summons dismissed; indemnity costs awarded to the plaintiff from 28 December 2018.
Legal Topics
['enforcement of Guarantee' 'loan Default' 'abandonment of Positive Defences' 'indemnity Costs' 'post Judgment Interest']
['guarantee and Indemnity' 'contract Law' 'civil Procedure'] ['enforcement of Guarantee' 'loan Default' 'abandonment of Positive Defences' 'indemnity Costs' 'post Judgment Interest']

Case Brief

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Procedural Posture

Equity Commercial List Proceeding for Enforcement of Guarantee and Indemnity / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Super Vision was entitled to judgment against Mr Xu under the guarantee for amounts owing under the Loan Agreement.' "Whether Mr Xu's positive defences based on alleged oral extensions, estoppel and unconscionable conduct should prevent enforcement of the guarantee." 'Whether Super Vision was entitled to indemnity costs under the Loan Agreement.' 'Whether an order for post judgment interest was necessary.']

Ratio Decidendi

Super Vision was entitled to judgment because Mr Xu did not dispute that the money was lent or that it had not been fully repaid, his positive defences were treated as abandoned when no submissions were made in support of them, the principal owing was agreed, and the interest calculation was admitted without objection. The Loan Agreement also entitled Super Vision to indemnity costs, and no separate order for post judgment interest was necessary because s 101 of the Civil Procedure Act 2005 (NSW) applied.

Court Disposition

Judgment for the plaintiff; defendant's First Cross-Claim Cross-Summons dismissed; indemnity costs awarded to the plaintiff from 28 December 2018.

Orders

  • ['Judgment be entered for the plaintiff against the defendant in the amount of HKD132,591,924.78.' "The defendant's First Cross-Claim Cross-Summons be dismissed." "The plaintiff's costs of the proceedings, on and from 28 December 2018, be paid by the defendant on an indemnity basis, as agreed or assessed."]