23 Apr 2021
The bank was entitled to an award of costs on an indemnity basis under the facility agreements and deeds of guarantee and indemnity, and the quantum claimed ($243,419.84) was appropriate; whether recovery of that award is subject to limitation of liability provisions is a separate issue reserved for enforcement proceedings.
8 Oct 2020
Clause 11 of the Term Loan unequivocally deemed the guarantors principal debtors and expressly preserved their liability against any act, omission or variation (including changes to Transaction Documents); the Deed of Priority formed part of the agreed Security and a condition precedent to the Facility so did not discharge the guarantors, and in any event clause 11.5 would have preserved liability even if the Deed constituted a variation; signatures were properly witnessed and lack of independent advice did not invalidate the guarantees, therefore the guarantors had no real defence and summar…
7 Sept 2020
On proper interpretation clause 2.1(b) constituted a complete obligation: Herd had the right to nominate land worth AUD$400,000 by reference to a Vanuatu bank panel valuation, so the contract was certain and complied with s40 LPA 1925; clause 11 was machinery only; Vanuatu Stamp Duties Act s19 did not render the contract void for lack of stamping for purposes of these proceedings; Herd was obliged to tender both the cash and the land transfers on the settlement date (sequential obligations under clause 7.3) and Haines was not required to realise the mortgage over Lot 58 before suing for any s…
5 Jun 2020
The plaintiff discharged its onus: the written on‑demand and lease default provisions authorised call up of the balances, the defendant produced no credible or interdependent equitable set‑off or fraud case that would impeach the plaintiff's claim, and the defendant's allegations and affidavit material were insufficient to require trial; summary judgment was therefore entered for the plaintiff.
28 Nov 2018
Clause 6.3 unambiguously allocated to the defendant all costs incurred by the lender in enforcing the contracts on a solicitor/own client basis; the defendant filed no challenge to the claimed costs and there was no material to show they were unreasonable, therefore costs were awarded to the plaintiff on a solicitor/own client basis as claimed.
7 Dec 2015
Applicant lacked standing under s 143 because he did not hold a registered estate or interest or qualify as a registered proprietor or applicant under the Land Transfer Act; independently, the caveator demonstrated an arguable caveatable interest based on the secured debt and clause 7 of the agreement and prior judgments against the registered proprietor operate as res judicata; accordingly the caveat remains and the removal application is dismissed.
7 Jul 2015
The defendants executed a written, continuing personal guarantee and indemnity in the credit application making them jointly and severally liable; BTC did not take possession of the collateral and the administrator sold the stock as agent of the company rather than as BTC's agent, with no evidence of undervalue or breach of PPSA duties; accordingly the defendants have no arguable defence and summary judgment is appropriate for the outstanding debt and contractual interest, service charges and costs.
12 Aug 2013
The Court awarded costs to the applicant fixed at $14,962.29, ordering indemnity costs against both the first respondents and the second respondent because their conduct constituted an obstructive, vexatious and unnecessary scheme to prevent enforcement of the mortgage; only costs reasonably attributable to the proceeding are recoverable and post-judgment or unrelated invoices are not recoverable.
10 May 2011
Leave to file the counterclaim out of time and leave to file the summary judgment application were granted; on the facts no arguable defence existed to the bank's claim for the principal amount because required disclosure under s17 CCCFA had been given and the parties had conducted the loan on the term loan basis; summary judgment was entered for the bank for principal $833,909.71 with contractual interest and costs.
29 Nov 2010
Leave was granted to the receiver to continue proceedings in the company's name because the security unequivocally extended to the cause of action, the claim was not plainly unsustainable, unsecured creditors would not be prejudiced by conditions protecting them, and appropriate protective conditions could be imposed: payment of $50,000 into court as security for costs, personal indemnity by Browne for any adverse costs exceeding that security, Browne to meet all prosecution costs and disbursements, and allowance for the defendant to continue its counterclaim. Costs incurred by Browne in enfo…