Investec Bank (Australia) Ltd v Colley [2012] NSWSC 813

Supreme Court New South Wales

Medium Neutral Citation: Investec Bank (Australia) Ltd v Colley [2012] NSWSC 813 Hearing dates: 19 June 2012 Decision date: 17 July 2012 Jurisdiction: Equity Division Before: Ward J Decision: Summary judgment on part of plaintiff's claim; leave to file amended defence; directions re filing of a further amended cross-claim Catchwords: PRACTICE AND PROCEDURE - summary judgment application - principles as set out in General Steel Industries v Commissioner of Railways (1964) 112 CLR 125 - power to be exercised with utmost caution and only in the clearest of cases - application in respect of claims for monies payable under three loans - HELD - evidentiary burden satisfied in relation to monies payable under the three loans - application granted - enforcement of judgment stayed pending determination of cross-claim

PRACTICE AND PROCEDURE - application to amend defence and statement of cross-claim - proposed amendments to defence minor with no material effect - proposed amendments to cross-claim substantial and plead that plaintiff is vicariously liable for misleading and deceptive conduct of the loans originator - plaintiff opposes proposed amendment as failing to disclose a reasonable cause of action and/or as an embarrassing pleading - where unclear from proposed amended pleadings in cross-claim how the particular agency relationship gives rise to the alleged liability - HELD - leave to file amended defence granted - application to file amended statement of cross-claim in the form proposed dismissed - leave to file within 28 days an amended cross-claim addressing the pleading issues raised by the plaintiff Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Duties Act 1997 (NSW) Fair Trading Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anakin Pty Ltd v Chatswood BBQ King Pty Ltd (2008) 250 ALR 620; [2008] FCA 1467 Bendigo and Adelaide Bank Ltd v Cairncross [2011] NSWSC 610 Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dey v Victorian Railways Commissioner (1949) 78 CLR 62 Drabsch v Switzerland General Insurance Co Ltd (Unreported, NSWSC, Santow J, 16 September 1996) General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Hans Constructions Pty Ltd v Cassar [2009] NSWCA 230 Investec Bank (Australia) Ltd v Burge (No 2) [2011] NSWSC 1557 Karuah Local Aboriginal Land Council v Mymurra Pty Ltd (No 2) [2008] NSWCA 700 Mutual Life & Citizen Assurance Co Ltd v Evatt (1970) 122 CLR 628 Perpetual Trustees Australia Limited v Schmidt & Anor [2010] VSC 67 Premier Building and Consulting Pty Ltd (recs apptd) v Spotless Group Ltd [2007] VSC 377; (2007) 64 ACSR 114 Shaw v State of New South Wales [2012] NSWCA 102 Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541; 177 ALR 611 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Tonto Home Loans Australia Pty Ltd v Tavares; Firstmac Ltd v Di Benedetto; Firstmac Ltd v O'Donnell [2011] NSWCA 389 Webster v Lampard (1993) 170 CLR 598 Woodcroft-Brown v Timbercorp Securities (No 2) [2011] VSC 526 Texts Cited: G E Dal Pont Law of Agency (2nd edn, LexisNexis, 2008) W A Seavey "The Rationale of Agency" (1919-1920) 29 Yale Law Journal 859 P Watts and F M B Reynolds, Bowstead and Reynolds on Agency (19th edn, Sweet & Maxwell, 2010) Category: Interlocutory applications Parties: Investec Bank (Australia) Ltd (Plaintiff/Respondent) Peter Colley (Defendant/Applicant) (Appearing in person) Representation: Counsel J M White (Plaintiff/Respondent) Solicitors Gadens (Plaintiff/Respondent) File Number(s): 11/150895