Cai v Tsang [2018] NSWSC 625

Cai v Tsang [2018] NSWSC 625

The plaintiff did not establish that the defendant had no arguable case. In particular, the defence based on the plaintiff's conduct as a director and shareholder and the Company's financial position when the second loan agreement was executed could not be rejected summarily because the evidence was silent on the Company's financial position and some of the plaintiff's submissions about resignation as director lacked evidentiary foundation. Accordingly, summary judgment was not appropriate.

Jurisdiction
Australia
Judgment Date
09 May 2018
Procedural Posture
Civil Proceedings for Enforcement of Loan Guarantee / Plaintiff's Notice of Motion for Summary Judgment Under R 13.1 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Plaintiff's application for summary judgment dismissed.
Legal Topics
['summary Judgment' 'loan Agreement' 'personal Guarantee' 'co Sureties and Contribution' 'contracts Review Act Relief' 'prevention Principle']
['civil Procedure' 'contract Law' 'guarantees and Indemnities'] ['summary Judgment' 'loan Agreement' 'personal Guarantee' 'co Sureties and Contribution' 'contracts Review Act Relief' 'prevention Principle']

Case Brief

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Procedural Posture

Civil Proceedings for Enforcement of Loan Guarantee / Plaintiff's Notice of Motion for Summary Judgment Under R 13.1 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ['Whether the plaintiff should obtain summary judgment on the guarantee claim.' 'Whether the defendant had an arguable defence based on failure of alleged co-sureties to sign the agreement or provide mortgages.' 'Whether provisions creating the guarantee and indemnity were void, unenforceable, harsh or unjust under s 7 of the Contracts Review Act 1980 (NSW).' "Whether the plaintiff's conduct as a director or shareholder of the Company arguably prevented performance or gave rise to equitable principles preventing enforcement."]

Ratio Decidendi

The plaintiff did not establish that the defendant had no arguable case. In particular, the defence based on the plaintiff's conduct as a director and shareholder and the Company's financial position when the second loan agreement was executed could not be rejected summarily because the evidence was silent on the Company's financial position and some of the plaintiff's submissions about resignation as director lacked evidentiary foundation. Accordingly, summary judgment was not appropriate.

Court Disposition

Plaintiff's application for summary judgment dismissed.

Orders

  • ["The plaintiff's Notice of Motion filed on 14 March 2018 by which an order for summary judgment is sought is dismissed." 'Unless a party makes an application in writing to my Associate within seven days for a different order, costs of and incidental to this application are to be costs in the cause.' "Liberty to...