Illawong Village P/L v State Bank of NSW Limited [2005] NSWCA 382

New South Wales Court of Appeal

CITATION: Illawong Village P/L v State Bank of NSW Limited [2005] NSWCA 382

HEARING DATE(S): 12, 13 September 2005

JUDGMENT DATE: 4 November 2005

JUDGMENT OF: Giles JA at 1; Santow JA at 37; Hunt AJA at 103

DECISION: Appeal dismissed with costs.

CATCHWORDS: BANKING – The appellant (and borrower) is a company concerned with the construction and operation of a neighbourhood shopping centre. Whether borrower was overcharged interest by its bank for a particular period when loan outstanding (limbo period) with damages claimed in consequence – whether interest charged for limbo period exceeded what bank was entitled to charge – whether there was a continuing agreement as to the relevant interest rate to be charged on the Bank's loan – whether agreement extended to the limbo period – whether the source of that agreement remained the original mortgage documents or a subsequent security over property subsequently acquired.

Buckingham & Co v London & Midland Bank Ltd (1895) 12 TLR 70 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 CASES CITED: Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 Dan v Barclays Australia Ltd (19983) 57 ALJR 442 Tallerman & Co Pty Ltd v Nathan's Merchandise (Vict) Pty Ltd (1957) 98 CLR 93

ILLAWONG VILLAGE PTY LIMITED (Appellant) PARTIES: STATE BANK OF NSW LIMITED (Respondent)

FILE NUMBER(S): CA 40259/04

B W RAYMENT, QC/ A J McQUILLEN (Appellant) COUNSEL: J E MARSHALL, SC/ G LUCARELLI (Respondent)

McCoy, Grove & Atkinson (Appellant) SOLICITORS: Minter Ellison (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division