NSW Caselaw
New South Wales Supreme Court
CITATION : Tim Barr Pty Limited v Narui Gold Coast Pty Limited [2007] NSWSC 74 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 1 February 2007
JUDGMENT DATE : 19 February 2007
JURISDICTION : Equity Division
JUDGMENT OF : Windeyer J at 1
DECISION : Appeal from Associate Justice Macready's decision, which dismissed a motion to strike out paragraphs of the defence, dismissed
CATCHWORDS : Catch Words – - Equity – General principles – Equitable defences – Want of clean hands – When available – Requirement of an immediate and necessary connection – Forgery of a bank guarantee by lessee – Funds obtained on loan supported by a forged guarantee applied to improvement of leased land – Whether defence to claim for specific performance of contract upon exercise of option to purchase - Restitution – Unjust enrichment – Right of lessee to recover costs of improvements – Defences – Consideration of whole of dealings – Forgery of a bank guarantee by lessee – Funds obtained by forged guarantee applied to improvement of leased land - Practice – Pleadings – Defence – Striking out – Jurisdiction to order – Defence not so untenable that could not succeed – Order dismissing motion to strike out upheld on appeal partly for different reasons
David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 357 CASES CITED : Fenson v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Meyers v Casey (1913) 17 CLR 90
Tim Barr Pty Limited (First Plaintiff) PARTIES : Timothy James Barr (Second Plaintiff) Narui Gold Coast Pty Limited (Defendant)
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