Westpac Banking Corporation v Michael Munk [2012] NSWSC 504

Westpac Banking Corporation v Michael Munk [2012] NSWSC 504

Taking the defendants' evidence and submissions at their highest, their proposed defences were hopeless and raised no triable issue. The bill facility terms entitled the Bank to charge default interest after default; any alleged representation about rollover did not provide a defence to repayment of the facility amount and default interest, and neither collateral contract nor promissory estoppel was arguable on the material. The Bank was entitled under the counter-indemnity to demand payment from the defendants in respect of the lease liability after accepting liability to St George Finance. The defendants' challenge to retirement of the bill facility into the overdraft and to the...

Jurisdiction
Australia
Judgment Date
17 May 2012
Procedural Posture
Civil Proceeding by Bank for Possession and Monetary Judgment Under Banking Facilities, Lease Indemnity and Mortgage/security Arrangements / Plaintiff's Notice of Motion for Summary Judgment Under Part 13 Rule 1 of the Uniform Civil Procedure Rules 2005; Possession Had Already Been Ordered and the Monetary Claim Remained in Issue
Outcome
Summary judgment for the plaintiff against both defendants for the monetary sum; defence struck out; defendants ordered to pay costs.
Legal Topics
['summary Judgment' 'default Interest' 'commercial Bill Facility' 'lease Facility' 'counter Indemnity' 'collateral Contract' 'promissory Estoppel' 'overdraft Account']
['civil Procedure' 'banking and Finance' 'contracts' 'equity'] ['summary Judgment' 'default Interest' 'commercial Bill Facility' 'lease Facility' 'counter Indemnity' 'collateral Contract' 'promissory Estoppel' 'overdraft Account']

Case Brief

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Procedural Posture

Civil Proceeding by Bank for Possession and Monetary Judgment Under Banking Facilities, Lease Indemnity and Mortgage/security Arrangements / Plaintiff's Notice of Motion for Summary Judgment Under Part 13 Rule 1 of the Uniform Civil Procedure Rules 2005; Possession Had Already Been Ordered and the Monetary Claim Remained in Issue

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to summary judgment for the monetary claim.' 'Whether the plaintiff was entitled to charge default interest under the bill facility.' 'Whether alleged representations by a bank officer gave rise to an arguable defence of collateral contract or promissory estoppel.' 'Whether the plaintiff was entitled under the counter-indemnity relating to the lease agreement to issue a notice of demand to the defendants.' 'Whether the plaintiff had demonstrated a right to retire the bill facility debt into an overdraft account and claim interest.']

Ratio Decidendi

Taking the defendants' evidence and submissions at their highest, their proposed defences were hopeless and raised no triable issue. The bill facility terms entitled the Bank to charge default interest after default; any alleged representation about rollover did not provide a defence to repayment of the facility amount and default interest, and neither collateral contract nor promissory estoppel was arguable on the material. The Bank was entitled under the counter-indemnity to demand payment from the defendants in respect of the lease liability after accepting liability to St George Finance. The defendants' challenge to retirement of the bill facility into the overdraft and to the...

Court Disposition

Summary judgment for the plaintiff against both defendants for the monetary sum; defence struck out; defendants ordered to pay costs.

Orders

  • ['That judgment be entered for the plaintiff against both defendants for the monetary sum.' 'The defence filed 22 December 2010 is struck out.' "The defendants are to pay the plaintiff's costs of the notice of motion filed 21 March 2011 and of the proceedings."]