National Australia Bank Ltd v C & O Voukidis Pty Ltd [2015] NSWSC 185

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v C & O Voukidis Pty Ltd [2015] NSWSC 185 Hearing dates: 9 & 18 December 2014 Date of orders: 13 March 2015 Decision date: 13 March 2015 Jurisdiction: Common Law Before: Davies J Decision: (1) With regard to the Defence to the Second Further Amended Statement of Claim:

(a) paragraphs 2, 3, 4, 5, 9A, 9B and 17 are struck out to the extent that the pleading in each paragraph extends beyond an admission of the paragraph in the Second Further Amended Statement of Claim to which each responds; (b) Paragraphs 24 to 34 are struck out; (c) Paragraphs 48 and 49 are struck out. Leave is given to the Fourth Defendant to re-plead the matters contained in paragraph 48. (d) If paragraph 75 of the Second Further Amended Statement of Claim is withdrawn, paragraph 37 of the Defence should be struck out.

(2) Dismiss the Fourth Defendant's Notice of Motion as amended filed 3 November 2014;

(3) Paragraphs 31, 32, 33 and 34 of the Second Cross-Claim filed 7 May 2014 are struck out;

(4) The Fourth Defendant is to pay the Plaintiff's costs of the Plaintiff's Notice of Motion filed 14 November 2014;

(5) The Fourth Defendant is to pay the Plaintiff's costs of the Fourth Defendant's Notice of Motion filed 3 November 2014. Catchwords: PROCEDURE – amendment of pleadings – application to file amended Cross-Claim – amended pleading introduces new claims and reinstates claims formerly abandoned – no explanation for delay or for having previously abandoned claims – admissions in pleadings – application to withdraw – no explanation for making of admissions nor of reasons for seeking to withdraw admissions – need for explanation – applications refused - application to strike out defences – no reasonable cause of action disclosed GUARANTEE AND INDEMNITY – rights of surety – against creditor – claim by creditor against guarantor for shortfall after sale of property – whether provisions of guarantee require payment by guarantor before claim can be made against creditor – duty under s 420A Corporations Act 2001 – whether provides a remedy to guarantor Legislation Cited: Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Corporations Act 2001 (Cth) Court Procedure Rules 2006 (ACT) Legal Profession Act 2004 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Full Court of Supreme Court of Victoria, 8 April, 1988, unreported) Artistic Builders Pty Ltd v Elliot and Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16; (2002) 10 VPR 19,565 Australia and New Zealand Banking Group Ltd v Bangadally Pastoral Co Pty Ltd (1978) 139 CLR 195 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Commonwealth Bank of Australia v Hannaford (No 2) [2013] NSWSC 574 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, Santow J, 16 October 1996, unreported) Dymocks Book Arcade Pty Ltd v Capral Ltd (formerly Alcan Australia Ltd) [2011] NSWSC 1423 Forsyth v Blundell (1973) 129 CLR 477 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 GE Capital Australia v Davis [2002] NSWSC 1146; 920020 11 BPR 20,529 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 Hollis v Vabu Pty Ltd (2001) HCA 44; (2001) 207 CLR 21 Johnson v Buttress (1936) 56 CLR 113 Maile v Rafiq [2005] NSWCA 410 National Australia Bank Ltd v C & O Voukidis Pty Ltd [2014] NSWSC 384 Permanent Custodians Ltd v AGB Developments Pty Ltd [2010] NSWSC 540 Yerkey v Jones (1939) 63 CLR 649 Texts Cited: O'Donovan, Modern Contract of Guarantee (Thomson Reuters 2014) Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff) Olga Voukidis (Fourth Defendant) Representation: Counsel: P Reynolds (Plaintiff) P Afshar (Fourth Defendant)