Westpac Banking Corporation v Munk [2012] NSWSC 1576

Westpac Banking Corporation v Munk [2012] NSWSC 1576

The defendants showed a fairly arguable case only as to default interest: even taking the alleged representation at its highest, the facility had expired by September 2011 and the Bank was entitled to summary judgment for the principal sum, but the alleged promissory estoppel could have prevented the Bank from retiring the bills and enforcing the facility as in default before September 2011. Clause 15.5 did not answer that point because the estoppel went to calculation of the primary debt and was not a set-off, counter claim or deduction.

Jurisdiction
Australia
Judgment Date
17 December 2012
Procedural Posture
Appeal Against Summary Judgment in Proceedings for Possession and Recovery of a Debt Arising Out of a Bill Facility and a Lease Facility / Defendants' Application for Extension of Time to Institute an Appeal Against the Decision of an Associate Judge and Appeal From Summary Judgment
Outcome
Defendants' application for extension of time granted; appeal allowed in part; orders of Harrison AsJ made on 17 May 2012 set aside; judgment to be entered for the plaintiff against both defendants in an amount to be calculated in accordance with the judgment.
Legal Topics
['extension of Time to Appeal' 'summary Judgment' 'promissory Estoppel' 'collateral Contract' 'default Interest' 'suspension of Rights Clause']
['civil Procedure' 'banking and Finance' 'equity' 'contract Law'] ['extension of Time to Appeal' 'summary Judgment' 'promissory Estoppel' 'collateral Contract' 'default Interest' 'suspension of Rights Clause']

Case Brief

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Procedural Posture

Appeal Against Summary Judgment in Proceedings for Possession and Recovery of a Debt Arising Out of a Bill Facility and a Lease Facility / Defendants' Application for Extension of Time to Institute an Appeal Against the Decision of an Associate Judge and Appeal From Summary Judgment

Legal Issues

  1. 1 ["Whether time should be extended for the defendants to institute an appeal against the Associate Judge's decision." 'Whether the Associate Judge erred in concluding that the proposed defence based on collateral contract or promissory estoppel was hopeless.' 'Whether the proposed promissory estoppel could preclude the Bank from claiming default interest from the date on which the bills were retired rather than from September 2011.' 'Whether clause 15.5 requiring payment without set-off, counter claim or deduction precluded the defendants from raising the promissory estoppel point.']

Ratio Decidendi

The defendants showed a fairly arguable case only as to default interest: even taking the alleged representation at its highest, the facility had expired by September 2011 and the Bank was entitled to summary judgment for the principal sum, but the alleged promissory estoppel could have prevented the Bank from retiring the bills and enforcing the facility as in default before September 2011. Clause 15.5 did not answer that point because the estoppel went to calculation of the primary debt and was not a set-off, counter claim or deduction.

Court Disposition

Defendants' application for extension of time granted; appeal allowed in part; orders of Harrison AsJ made on 17 May 2012 set aside; judgment to be entered for the plaintiff against both defendants in an amount to be calculated in accordance with the judgment.

Orders

  • ['The time within which the appeal may be instituted is extended to 20 August 2012.' 'The orders of Harrison AsJ made on 17 May 2012 are set aside and in lieu thereof judgment is to be entered for the plaintiff against both defendants in an amount to be calculated in accordance with this judgment.' 'The plaintiff is...