Westpac Banking Corporation v Gilio [2011] NSWSC 1309

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Gilio [2011] NSWSC 1309 Hearing dates: 14 October 2011 Decision date: 04 November 2011 Before: Rothman J Decision: 1. The application to strike out paragraphs 31 and 32 in the first, second, fourth, fifth and sixth defendants' defence to the amended statement of claim filed on 5 August 2011 is refused; 2. The application to strike out paragraph 33 in the third defendant's defence to the amended statement of claim filed on 29 July 2011 is refused; 3. The application for summary judgment against the first, second, third, fourth, fifth and sixth defendants for the amounts owed in respect of the second and third banker's undertaking is refused; 4. Motion dismissed; 5. Costs of the motion will be the defendant's costs in the cause. Catchwords: PROCEDURE - civil - documents or pleadings - strike out; application to - an application to strike out parts of defences to a statement of claim and a consequential order for summary judgment - application refused. Legislation Cited: Australian Securities and Investments Act 2001 (Cth) Civil Procedure Act 2005 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705 Bank of Western Australia v Hodgkinson [2011] NSWSC 96 Batiste v Lenin [2002] NSWSC 233 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 Brimson v Rockler Concrete Pipes [1982] 2 NSWLR 937 Commonwealth Development Bank v Windermere Pastoral [1999] NSWSC 518 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Federal Commerce Navigation Company Ltd v Molena Alpha Inc [1978] QB 927 GE Captial v Davis [2002] NSWSC 1146 General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Lord v Direct Acceptance Corporation Ltd (Receiver and Manager Appointed) (in liquidation) (1993) 32 NSWLR 362 Roadshow Entertainment Pty Ltd v ACN 053006269 Pty Ltd (Receiver and Manager Appointed) (formerly CEL Home Video Pty Ltd) (1997) 32 NSWLR 462 St George Bank Ltd v Archer Philip Field [2007] NSWSC 902 Stooke v Taylor (1880) 5 QBD 569 Texts Cited: Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd edition (1992) Category: Procedural and other rulings Parties: Westpac Banking Corporation ACN 007 457 141 (plaintiff) Pasquale Gilio (defendant) Renato Licata (second defendant) Alex George Fahd (third defendant) Dominic Sorbora (fourth defendant) Frank Placanica (fifth defendant) Zdenko Herceg (sixth defendant) Representation: Counsel Mr J Simpkins SC (for the plaintiff) Mr F Corsaro SC with Mr M Tanevski (for the third defendant) Mr P Beale (for the fourth and fifth defendants) Solicitors Gadens Lawyers (for the plaintiff) McGrath, Dicembre & Co Solicitors (for the first, second, fourth, fifth and sixth defendants) Belgrave Lawyers (for the third defendant) File Number(s): 2010/00231379