Purchas (in his capacity as Administrator of Highwatch Pty Limited) v Shonoda [2007] NSWSC 1431

New South Wales Supreme Court

CITATION : Purchas (in his capacity as Administrator of Highwatch Pty Limited) v Shonoda [2007] NSWSC 1431

HEARING DATE(S) : 10 December 2007

JUDGMENT DATE : 12 December 2007

JURISDICTION : Common Law

JUDGMENT OF : Associate Justice Malpass

DECISION : (1) I direct the entry of judgment for the plaintiff in a sum to be ascertained. (2) The defendant is to pay the costs of the plaintiff's Notice of Motion. (3) Leave to file the proposed cross-claim is refused. (4) The defendant is to pay the costs of her Notice of Motion. (5) The exhibits may be returned.

CATCHWORDS : COMMON LAW - summary judgment - leave to file cross-claim - pleading

LEGISLATION CITED : Uniform Civil Procedure Rules

CASES CITED : Commercial Bank of Australia v Amadio (1983) 151 CLR 447

PARTIES : Ian James Purchas (in his capacity as Administrator of Highwatch Pty Limited) (Pl) Eman Shonoda (Def)

FILE NUMBER(S) : SC 11250/07

COUNSEL : Ms V Whittaker (Pl) In Person (Def)

SOLICITORS : Kemp Strang (Pl)

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

12 DECEMBER 2007

11250/07 Ian James Purchas in his capacity as Administrator of Highwatch Pty Limited v Eman Shonoda

JUDGMENT 1 HIS HONOUR: On 9 March 2007, the plaintiff filed a Statement of Claim. It is founded on the provisions of a Deed of Company Arrangement (the deed) and a Deed of Guarantee and Indemnity (the guarantee). Both were executed on 4 June 2004. 2 The plaintiff is one of the two appointed administrators of Highwatch Pty Limited (the company). The other administrator has since resigned. The deed was made between the administrators and the company. The deed contained a covenant from the company to pay moneys to the administrators. The covenant was supported by the guarantee. The guarantee was given, inter alia, by the defendant. 3 The sum of $1,362,290.11 is claimed as being payable under the covenant and the administrators have demanded payment of that sum from the defendant. She has not made payment pursuant to the guarantee. The Statement of Claim claims those moneys, together with interest and costs. 4 On 26 April 2007, the defendant filed a defence. It alleges that the deed and guarantee are unenforceable by reason of, inter alia, unconscionable conduct. I shall look at the defence in more detail in due course. 5 On 31 August 2007, the defendant filed a Notice of Motion. It seeks leave, inter alia, to file a cross-claim. On 13 September 2007, the plaintiff filed a Notice of Motion. It, in effect, seeks summary judgment. 6 The Notices of Motion were listed for hearing on 10 December 2007. Both Notices of Motion were heard on that day. The plaintiff was represented by Counsel. The defendant appeared in person. She was assisted by her husband (Mr Mhanna). 7 The plaintiff has sworn two affidavits. The affidavits exhibited two large bundles of material. The defendant has sworn an affidavit in support of her Notice of Motion. It deposes to matters that have taken place subsequent to the commencement of proceedings. She also tendered documentation (Exhibit 1). 8 Before proceeding further, I should briefly refer to certain background material. 9 The defendant came to be both a director and the secretary of the company. The company was engaged in property development (inter alia, involving fifty-two units at Chiswick). It had borrowed moneys from Sovereign Capital Limited (Sovereign), inter alia, on the security of the property at Chiswick (the property). The company fell into financial difficulties. It owed Sovereign in the order of $8 M. Winding-up proceedings were commenced by Gavcon Building & Construction Pty Limited. Receivers were appointed to the company. On 5 March 2004, the administrators were appointed pursuant to the security had by Sovereign.