Standard Chartered Bank Australia v Alec Dean [1999] NSWSC 1042

New South Wales Supreme Court CITATION : Standard Chartered Bank Australia v Alec Dean [1999] NSWSC 1042 CURRENT JURISDICTION : Equity Division Commercial List FILE NUMBER(S) : 50019/99 HEARING DATE(S) : 11.10.99, 12.10.99 JUDGMENT DATE : 22 October 1999

PARTIES : Standard Chartered Bank Australia Ltd & Nuchem Australia Pty Limited (Receivers and Managers Appointed) v Alec Dean & Osman Ahmed JUDGMENT OF : Hunter J

COUNSEL : Applicant: Mr M R Aldridge Respondent: Mr D Ryan SOLICITORS : Applicant: Hunt Partners Respondent: Mallesons Stephen Jaques CATCHWORDS : Practice and Procedure - summary judgment - application to set aside - want of credible evidence in support of application - application dismissed. ACTS CITED : Evidence Act 1995 DECISION : Application for setting aside summary judgment and stay refused. Application dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J

Friday 22 October 1999

50019/99 STANDARD CHARTERED BANK AUSTRALIA LTD & ANOR v ALEC DEAN & ANOR

REASONS FOR JUDGMENT 1 This is an application by Alec Dean (the applicant) to set aside a summary judgment of Rolfe J of 20 May 1999 (the summary judgment) in these proceedings (the principal proceedings) and in the event that the summary judgment is set aside, seeking a stay of the principal proceedings, in effect, pending the determination of proceedings in the Supreme Court of the State of New York (the US proceedings). The plaintiffs in the principal proceedings are also the plaintiffs in the US proceedings. 2 The summary judgment was in favour of the first plaintiff, Standard Chartered Bank Australia Ltd (the bank) in the sum of A$5,910,797.68. Rolfe J declined to give judgment in favour of the second plaintiff, the receivers and managers (the receivers) of Nuchem Australia Pty Ltd (Nuchem Australia), on the basis that the bank had not called "upon it to meet that liability having elected to join it as a plaintiff in [the principal] proceedings". 3 Counsel for both parties have expressly accepted that the summary judgment was limited to the applicant's liability under a deed of guarantee and indemnity of 11 September 1997 (the guarantee), given by him to the bank in respect of Nuchem Australia's indebtedness to the bank, and that Rolfe J accepted the evidence of the bank establishing three acts of default by Nuchem Australia under a facility agreement of 9 September 1997 between it and the bank (the facility) and an equitable charge of 19 September 1997 (the charge) over the assets and undertaking of Nuchem Australia in favour of the bank. Those acts of default were particularised in paragraph 29 of the bank's contentions in its amended summons in the principal proceedings (the contentions) as follows: "Events of Default and Appointment of Receivers and Managers