New Capital Finance Ltd (Receiver & Manager Appointed) v Lindsay McNeill Cogill & ors [2009] NSWSC 806

New South Wales Supreme Court

CITATION : New Capital Finance Ltd (Receiver & Manager Appointed) v Lindsay McNeill Cogill & ors [2009] NSWSC 806

HEARING DATE(S) : 9 July 2009 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 9 July 2009

DECISION : Give summary judgment for principal and interest at contractual (not default) rate.

CATCHWORDS : PROCEDURE – Summary disposal - Application under UCPR, r 12.7, to strike out defences and cross-claims of the first and second defendants – loan agreement with 72% interest rate and 144% default interest - where first and second defendants have not complied with Notice for Discovery – where discovery not necessary - where plaintiff's application would otherwise be dismissed – where defendants indicate that they do not intend to defend proceedings – where defendants admit indebtedness for principal and some interest - where defendants have brought cross-claim contending that transaction ought to be set aside for unconscionable conduct – where seriously arguable that default interest is penal - where in light of defendants admissions and indication that they do not intend to defend dismissal of present application would only defer inevitable – where plaintiff does not press for default interest

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, r 12.7

CATEGORY : Procedural and other rulings

New Capital Finance Ltd (Receiver & Manager Appointed) (plaintiff) Lindsay McNeill Cogill (first defendant) PARTIES : Maree Ann Cogill (second defendant) Hymix Pty Ltd (third defendant) Perpetual Ltd (fourth defendant)