BANK OF CHINA LTD -v- C.G.S. (GROUP) PTY LTD [2009] NSWSC 397

New South Wales Supreme Court

CITATION : BANK OF CHINA LTD -v- C.G.S. (GROUP) PTY LTD [2009] NSWSC 397

HEARING DATE(S) : 5-6th May 2009

JUDGMENT DATE : 18 May 2009

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

DECISION : I give judgment for the plaintiff against the defendants for $US5,566,679.76 and interest from 5 May 2009 until publication of this judgment at $US725.78 per day: and also for costs. I require counsels' assistance on the currency in which the judgment is expressed.

CATCHWORDS : BANKS and BANKING – Bank sued Customer and Managing Director on balance of account after issuing and honouring Letters of Credit in 1998 – consideration of form and terms of General Banking Facility Agreements (GBFA) and Guarantee and Indemnity – HELD that some of GBFA and Guarantee documents gave rise to causes of action founded on a deed and time limit of 12 years had not run out – if the Bank had the benefit of several contractual promises to pay the same debt they could each be enforced subject to 6 year or 12 year limitation periods according as they were founded on simple contracts or deeds – consideration of operation of written acknowledgement (on which the Bank did not need to rely).

Conveyancing Act 1919 (NSW) LEGISLATION CITED : Limitation Act 1939 (UK) Limitation Act 1969 (NSW)

CATEGORY : Principal judgment

Dobbs v National Bank of Australasia CASES CITED : Limited (1935) 53 CLR 64 Dungate v Dungate [1965] 1 WLR 1477 Hepburn v McDonnell (1918) 25 CLR 199

Bank of China Ltd (Plaintiff) PARTIES : CGS (Group) Pty Ltd (First Defendant) Yue Jin Guo (Second Defendant)