Brighten Pty Limited ACN 122 082 393 -v- Bank of Western Australia Limited ACN 050 494 454 [2011] NSWSC 816

Supreme Court New South Wales

Medium Neutral Citation: Brighten Pty Limited ACN 122 082 393 -v- Bank of Western Australia Limited ACN 050 494 454 [2011] NSWSC 816 Hearing dates: 1 February 2011 & 16 March 2011 Decision date: 16 March 2011 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Judgment for the cross-claimant against each of the first cross-defendant, second cross-defendant and third cross-defendant in the amount of $13,583,412.13 Catchwords: CLAIM ON GUARANTEE - no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Bank of Western Australia - Cross-Claimant Brighten Pty Limited - First Cross-Defendant Noble Growth Investment Limited - Second Cross-Defendant Michael Wilson Kwok - Third Cross-Defendant Representation: Counsel: P.J. Dowdy - Cross-Claimant T.J. Morahan - Third Cross-Defendant Solicitors: Gadens Lawyers - Cross-Claimant Jackson Lalic Lawyers - Third Cross-Defendant File Number(s): 2009/298763

EX TEMPORE Judgment 1The cross-claimant bank lent and advanced monies to the second cross-defendant ("Noble") secured by mortgage over real property and a fixed and floating charge. As well, Noble's obligations were guaranteed by the first cross-defendant ("Brighten") and the third cross-defendant ("Mr Kwok") under written guarantees dated 18 December 2006 respectively. 2The bank sues each of the cross-defendants for the balance owing under the facility. 3Neither Brighten nor Noble has appeared to defend the claims against them. 4Mr Kwok initially raised a defence that a proper demand had not been made under his guarantee. This led the bank to amend its Commercial List Cross-Claim Statement so as to rely on a subsequent demand. It did not, however, abandon its claim based on its original demand. 5The bank must of course pay Mr Kwok's costs, if any, thrown away by the amendment. 6After the amendment had been granted, Mr Kwok, for whom Mr Morahan of counsel appears, accepted that he has no defence to the cross-claimant's claim. 7Each of the elements of the claim against each of the cross-defendants has been established by affidavits read and documents tendered. Quantum as at 14 March 2011 has been established by lender's certificates given under the relevant provisions of the facility agreement with Noble, Brighten's guarantee and Mr Kwok's guarantee respectively, in the amount of $13,583,412.13. 8There will be judgment for the cross-claimant against each of the first cross-defendant, second cross-defendant and third cross-defendant in the amount of $13,583.412.13 together with interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW) at the prescribed rate from 16 March 2011, the date upon which this judgment takes effect. 9The cross-defendants are to pay the cross-claimant's costs of the proceedings on an indemnity basis, save that the cross-claimant is to pay the third cross-defendant's costs, if any, thrown away as a consequence of the amendment of its Commercial List Cross-Claim Statement made on 16 March 2011. 10The exhibits are to be returned.