Bank of Western Australia v Daleport Pty Ltd [2011] NSWSC 819

Supreme Court New South Wales

Medium Neutral Citation: Bank of Western Australia v Daleport Pty Ltd [2011] NSWSC 819 Hearing dates: 26 July 2011 Decision date: 04 November 2011 Jurisdiction: Common Law Before: Davies J Decision: 1. The parties should bring in Short Minutes to reflect these reasons. 2. The Plaintiff is given leave to tender any further certificates showing how much is owing in respect of the facilities for which summary judgment is to be given. 3. The First Defendant is given leave to serve (but not file) any proposed amended Defence within 14 days. 4. The Plaintiff is to advise the First Defendant within 7 days thereafter if there is any objection to the filing of that Defence. If there is no such objection the Defence is to be filed within a further 7 days. Catchwords: PROCEDURE - Summary Judgment - claim arising out of loan facilities - lending terms precluding set-off and cross-claim - defence raising statutory and equitable rights from misrepresentations and unconscionable conduct - whether a set-off - guarantee - whether terms of guarantee require payment by guarantor before claim can be made against creditor - cross-claim earlier dismissed for failure to provide security ordered - whether defendant confined to non-monetary remedies. Legislation Cited: Australian Securities and Investment Commission Act 2001 Competition and Consumer Act 2010 Trade Practices Act 1974 Cases Cited: Bank of Western Australia v Daleport [2010] NSWSC 1207 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238 GE Capital Australia v Davis [2002] NSWSC 1146; (2002) 11 BPR 20,529 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Graeme Webb Investments Pty Limited v St George Partnership Banking Limited [2001] NSWCA 93 Marks v GIO Australia Holdings (1998) 196 CLR 494 Permanent Custodians Ltd v AGB Developments Pty Ltd [2010] NSWSC 540 Perpetual Trustee Company Ltd v Michael Wilson Kwok [2011] NSWSC 422 Category: Interlocutory applications Parties: Bank of Western Australia (Plaintiff) Daleport Pty Ltd (First Defendant/First Cross-Claimant) Alexander Raymond Wilson (Second Defendant/Second Cross-Claimant) Representation: P Dowdy (Plaintiff) B Ledger (Defendants) Gadens Lawyers (Plaintiff) Ledger & Co Lawyers (Defendants) File Number(s): 2008/287869