BT Securities Limited v Lobel [2011] NSWSC 335

Supreme Court New South Wales

Medium Neutral Citation: BT Securities Limited v Lobel [2011] NSWSC 335 Hearing dates: 15 April 2011 Decision date: 21 April 2011 Jurisdiction: Common Law Before: Harrison J Decision: 1. First plaintiff is entitled to summary judgment. 2. Parties to bring in short minutes of order. Catchwords: PRACTICE & PROCEDURE - UCPR 13.1 - summary judgment - where plaintiffs advanced money to the defendant - where defences so obviously untenable that they cannot possibly succeed - summary judgment ordered Legislation Cited: Powers of Attorney Act 2003 Cases Cited: Gibbons v Pozzan [2007] SASC 99; (2007) 209 FLR 233 MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636 Powell v London and Provincial Bank [1893] 2 Ch 555 Windsor Refrigerator Co. Ltd v Branch Nominees Ltd [1961] Ch 375 Category: Procedural and other rulings Parties: BT Securities Limited (First plaintiff) Westpac Banking Corporation (Second plaintiff) Brent Calvin Lobel (Defendant) Representation: Counsel: J Hynes (Plaintiffs) S Ipp (Defendant) Solicitors: Minter Ellison (Plaintiffs) Watson Mangioni Lawyers Pty Ltd (Defendant) File Number(s): 2010/28280

Judgment 1On 29 August 2006, BT Securities Limited provided financial accommodation to Mr Lobel. They entered into what was described as an Absolute Investment Facility. On 1 February 2010 BTS commenced these proceedings by statement of claim alleging that Mr Lobel had defaulted under the terms of the loan and that he owed BTS $540,559.56. Mr Lobel filed a defence in which he put in issue the fact that the loan application form was not a deed. He also declined to admit that he had executed a power of attorney in favour of the person who purported to exercise the power when executing the loan agreement or, to similar effect, that BTS was thereby authorised to execute it. Mr Lobel maintained that he was not in these circumstances liable to pay BTS any of the money that it had advanced to him and which it now claimed. 2BTS contended that these matters do not amount to a defence to its claim and by its motion filed on 20 January 2011 applied for summary judgment pursuant to UCPR 13.1. For the reasons that appear below, I consider that Mr Lobel has no defence to BTS's claim and that BTS is entitled to the relief that it seeks.