NSW Caselaw
New South Wales Supreme Court
CITATION : Imperial Tarmacadam and Asphalting Company Pty Limited v St George Bank Limited [2009] NSWSC 1287
HEARING DATE(S) : 12 November 2009 JUDGMENT OF : Hammerschlag J
EX TEMPORE JUDGMENT DATE : 12 November 2009
DECISION : Motion dismissed. Bank to pay the plaintiff's costs
CATCHWORDS : PROCEDURE – pleading - CONTRACT – penalty – the defendant bank cross-claimed that it was entitled under the terms of a loan contract to be paid break costs by the plaintiff as the plaintiff had repaid early the total amount owing to it before the end of a fixed interest period – the plaintiff in its Commercial List Reply relied on the assertion that any such provision of the loan contract was void or unenforceable as a penalty – the defendant sought that the Reply be struck out as the provision requiring the payment of break costs was not a penalty because it was payable on early repayment and not on breach of the contract and because it was intended to compensate the bank for real loss it would suffer – held that the Reply would not be struck out as the plaintiff's position was not so incontestably incorrect that it is bound to fail, as what is meant by a 'breach of contract' was not necessarily settled, and as there were live issues of fact to be determined
LEGISLATION CITED : Civil Procedure Act 2005
Ringrow Pty Limited v BP Australia Pty Limited [2005] 224 CLR 656 CASES CITED : Interstar Wholesale Finance Pty Limited v Integral Home Loans Pty Limited [2008] NSWCA 310 Ringrow Pty Limited v BP Australia Limited [2003] FCA 1297; 203 ALR 281
Imperial Tarmacadam and Asphalting Company Pty Limited (ACN 095 453 624) acting as trustee for the Imperial Tarmacadam and Asphalting Unit Trust - Plaintiff PARTIES : St George Bank Limited (ABN 92 055 513 070) - Defendant St George Bank Limited (ABN 92 055 513 070) - Cross-Claimant Imperial Tarmacadam and Asphalting Company Pty Limited (ACN 095 453 624) acting as trustee for the Imperial Tarmacadam and Asphalting Unit Trust - Cross-Defendant
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