Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor (No 2) [2007] NSWSC 592

New South Wales Supreme Court

CITATION : Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor (No 2) [2007] NSWSC 592

HEARING DATE(S) : 23 May 2007

JUDGMENT DATE : 3 July 2007

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Dismiss defendants' oral application for leave to amend defence. Grant leave to defendants to file cross-claim. Declare that upon true construction of the Loan Origination and Management Agreements (LOMA), cl 20.3(c) is void. Declare that first plaintiff and second plaintiff respectively are entitled to be paid, and first defendant is liable to pay, originator's fee referred to in cl 10.1(a)(ii) of LOMA, notwithstanding that LOMA may have been terminated under clause 20.1(c). Order that first defendant pay to first plaintiff and the second plaintiff respectively originator's fee referred to in cl 10.1(a)(ii) of LOMA, as and when it falls due, notwithstanding that LOMA may have been terminated under clause 20.1(c). Give judgment that first defendant pay first plaintiff $163,053.81. Give judgment that first defendant pay second plaintiff $6,789.27. Reserve liberty to defendant to apply for a stay.

CATCHWORDS : PROCEDURE – determination of separate questions – orders to be made consequential upon determination – where plaintiff prima facie entitled to judgment on claim – where defendant seeks leave to file cross-claim which is seriously arguable – whether judgment on claim should be given and if so whether execution should be stayed – PROCEDURE – set-offs and cross-claims – where plaintiff claims fees due under contract – where defendant seeks to set-off and/or cross-claim for damages for breaches of warranty in same contract – where alleged breaches of warranty caused lender to make loans which it would otherwise not have made – approach to measure of damages – whether claim for damages is liquidated or unliquidated – CONTRACT – damages for breach – where alleged breaches of warranty caused lender to make loans which it would otherwise not have made – approach to measure of damages