Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473

FEDERAL COURT OF AUSTRALIA

Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473 Citation: Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473

Parties: PERPETUAL TRUSTEES AUSTRALIA LIMITED v PALADIN WHOLESALE FUNDING PTY LIMITED and INTEGRAL FINANCIAL PTY LIMITED

File number(s): NSD 1219 of 2010

Judge: EMMETT J

Date of judgment: 28 February 2011

Catchwords: CORPORATIONS – where first defendant submitted applications on behalf of borrowers for plaintiff to make loans secured by mortgage over real property pursuant to the securitised mortgage lending programme of a fund of which plaintiff was trustee – application form alleged to have been fraudulently completed by prospective borrower – secondary obligations arising under corporations and fair trading legislation alleged to have been breached by first defendant NEGLIGENCE – whether Part 1A of the Civil Liability Act 2002 (NSW) had the effect of making available a contributory negligence defence, regardless of whether or not plaintiff's claim was brought in tort, in contract, under statute or otherwise – held that Part 1A enacted in order to reinstate a formerly abrogated defence of contributory negligence, rather than to create a defence not otherwise available under general law – relevant part of defence struck out accordingly PRACTICE AND PROCEDURE – where first defendant pleaded that, if it was liable to plaintiff, certain persons were concurrent wrongdoers in respect of loss alleged to have been suffered – held that relevant paragraphs of defence insufficient to make out pleadable claims by plaintiff against parties held out as concurrent wrongdoers – relevant part of defence struck out accordingly