National Australia Bank Limited v Amed & Ors [2011] NSWSC 988

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Amed & Ors [2011] NSWSC 988 Hearing dates: 16 June 2011 Decision date: 07 September 2011 Jurisdiction: Common Law Before: Adams J Decision: 1.The default judgments in respect of the guarantee obligations be set aside. 2.Leave granted to the second, sixth, and seventh defendants to file defences. 3.Defendants to pay the plaintiff's costs of the motion. Catchwords: PROCEDURE - application to set aside default judgment - whether adequate explanation for not defending - whether bona fide ground of defence disclosed.

GUARANTEE - election of mode of enforcement by creditor - property given as security for loan facility - guarantees given in respect of loan - creditor entered into possession of property - property unsold - creditor seeking to enforce against guarantors while in possession - whether creditor bound by agreement not to pursue guarantee before selling property - whether guarantee unjust. Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) Contracts Review Act 1980 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Adams v Kennick Trading (Int) Ltd & Ors (1986) 4 NSWLR 503 China and South Sea Bank Limited v Tan [1990] 1 AC 536 Mailman v Challenger Bank Limited (1991) 5 BPR NSW (SC) 11,721 Reinehr Industrial Lease and Finance Pty Ltd v Jordan (Court of Appeal, 4 June 1974, unreported) West v AGC (Advances) Limited (1986) 5 NSWLR 610 Category: Interlocutory applications Parties: National Australia Bank Limited (Plaintiff) Inara Amed (First Defendant) Michael Hassan Amed (Second Defendant) P&M Coastal Developments Pty Limited (Third Defendant) Lommas Pty Limited (Fourth Defendant) Agevola Pty Limited (Fifth Defendant) Nina Amed (Sixth Defendant) Peter Hassan Amed (Seventh Defendant) Representation: Counsel C. Colquhoun (Plaintiff) R. Mitry (solicitor) (Second, Sixth and Seventh Defendants) Solicitors Dibbs Barker Lawyers (Plaintiff) Herbert Weller Solicitor (First Defendant) Mitry Lawyers (Second, Sixth and Seventh Defendants) File Number(s): 2010/54302