Lumby v Corportex [2004] NSWSC 924

New South Wales Supreme Court

CITATION : Lumby v Corportex [2004] NSWSC 924 HEARING DATE(S) : 14 September 2004 JUDGMENT DATE : 8 October 2004

JUDGMENT OF : Barr J at 1 DECISION : See paras 21 and 22.

PARTIES : Lumby Pty Limited v Corportex Pty Limited and Anor FILE NUMBER(S) : SC 11875/2003 COUNSEL : Plaintiff: M Cohen Defendant: S Ivanstoff SOLICITORS : Plaintiff: Gadens Lawyers Defendant: Minerva Technology Lawyers

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

GRAHAM BARR J

8 October 2004

11875/03 LUMBY PTY LIMITED v CORPORTEX PTY LIMITED AND ANOR

JUDGMENT 1 HIS HONOUR: This is a motion for summary judgment. The evidence establishes that on 7 April 2000 the plaintiff, Lumby Pty Limited (Lumby), and the first defendant, Corportex Pty Limited (Corportex), entered into an agreement for a loan by Lumby to Corportex of amounts not exceeding $200,000, called a trade a trade finance agreement, and Lumby, Corportex and the second defendant, Norman Heinz-Jurgen Mendelsohn, a director of Corportex, entered into an agreement by which Mr Mendelsohn guaranteed the obligation of Corportex to Lumby under the trade finance agreement. On 20 June 2000 Lumby and Corportex agreed that the amount to be lent should increase to $ 600,000 and Mr Mendelsohn executed a second mortgage over certain property of which he was the registered proprietor. The mortgage included terms that Mr Mendelsohn would pay Lumby all money due under the guarantee in default of which Lumby would be entitled to possession of the property. On 17 October 2000 the trade finance agreement was varied a second time to provide for the lending of up to $900, 000. Between 10 April and 28 July 2000 Lumby lent to Corportex sums totalling $899,890.15 under the provisions of the trade finance agreement as varied. Except for the payment of the security deposit of $45,000 and payments totalling $238,792.17 Corportex failed to pay Lumby any amount owing under the trade finance agreement. Corportex and Mr Mendelsohn were in default of their obligations under the arrangements constituted by the trade finance agreement, the guarantee and the mortgage. On 9 May 2002 receivers and managers were appointed to Lumby under the provisions of a deed of charge. On 20 November 2002 Lumby made a demand in writing on the defendants to pay all amounts due and owing. They did not pay. By 10 July 2003 their total indebtedness was $1,978,815.87.