Benchmark (Aust) Pty Limited & Anor v National Australia Bank Limited [2012] NSWCA 130

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Benchmark (Aust) Pty Limited & Anor v National Australia Bank Limited [2012] NSWCA 130 Hearing dates: 23 April 2012 Decision date: 09 May 2012 Before: Barrett JA at [1] Sackville AJA at [2] Decision: 1. Application for leave to appeal is dismissed. 2. The applicants to pay the respondent's costs of the application for leave to appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - application for leave to appeal against summary judgment - applicant's defence found to be groundless by primary Judge - no error demonstrated - application dismissed

CONTRACTS - construction and interpretation - whether original guarantee supplanted by later guarantee - subjective understanding of one party not relevant - post-contractual conduct not relevant - meaning to be construed objectively Legislation Cited: Corporations Law Supreme Court Act 1970 Cases Cited: Agricultural & Rural Finance Ltd v Gardiner [2008] HCA 57; 238 CLR 570 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Mahoney v McManus [1981] HCA 54; 180 CLR 370 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Category: Principal judgment Parties: Benchmark (Aust) Pty Limited (First Applicant) Michael Angel Sanchez (Second Applicant) National Australia Bank Limited (Respondent) Representation: Counsel: S J Burchett with S Alexandre-Hughes (Applicants) J Hynes (Respondent) Solicitors: Levitt Robinson Solicitors (Applicants) TurksLegal (Respondent) File Number(s): 2012/42147 Decision under appeal Citation: National Australia Bank Ltd v Benchmark (Aust) Pty Ltd [2011] NSWSC 1464 Date of Decision: 2011-11-30 00:00:00 Before: McCallum J File Number(s): SC 2010/27037