Barclays Bank Plc v Kufner

Barclays Bank Plc v Kufner

None of the defences advanced by the defendant have a real prospect of success. The Kel loan was not discharged, the Bank was entitled under the guarantee to release the Kel mortgage without procuring a replacement, the Unfair Terms in Consumer Contracts Regulations 1999 do not apply, the set-off clause is reasonable and enforceable, and the defendant's claims for negligent misstatement or misrepresentation are not sustainable as they are reflective loss claims. The Bank is entitled to summary judgment for the sums claimed under the guarantee.

Parties
Claimant: Barclays Bank plc; Defendant: Alfons Kufner
Jurisdiction
England and Wales
Judgment Date
10 October 2008
Procedural Posture
Commercial Claim (summary Judgment Application) / Judgment on Application for Summary Judgment
Outcome
Summary judgment granted for the claimant.
Legal Topics
Guarantees, Release of Security, Set Off, Unfair Terms in Consumer Contracts, Negligent Misstatement, Reflective Loss
Banking and Finance Law Contract Law Equity Guarantees Release of Security Set Off Unfair Terms in Consumer Contracts Negligent Misstatement +1 more

Case Brief

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Parties

Barclays Bank plc

Claimant

Alfons Kufner

Defendant

Procedural Posture

Commercial Claim (summary Judgment Application) / Judgment on Application for Summary Judgment

Legal Issues

  1. 1 Whether the Kel loan was discharged by execution of the Paelten loan agreement
  2. 2 Whether the Bank's release of the Kel mortgage without procuring a registrable replacement mortgage discharged the guarantor
  3. 3 Whether clauses 5.1 and 5.3 of the guarantee exclude the Bank's equitable duty to the surety

Ratio Decidendi

None of the defences advanced by the defendant have a real prospect of success. The Kel loan was not discharged, the Bank was entitled under the guarantee to release the Kel mortgage without procuring a replacement, the Unfair Terms in Consumer Contracts Regulations 1999 do not apply, the set-off clause is reasonable and enforceable, and the defendant's claims for negligent misstatement or misrepresentation are not sustainable as they are reflective loss claims. The Bank is entitled to summary judgment for the sums claimed under the guarantee.

Court Disposition

Summary judgment granted for the claimant.

Orders

  • Judgment for the Bank for the sums claimed to be due under the Kel guarantee.