Smith v Skinner [2018] NSWDC 197

District Court New South Wales

Medium Neutral Citation: Smith v Skinner [2018] NSWDC 197 Hearing dates: 13 July 2018 Date of orders: 19 July 2018 Decision date: 19 July 2018 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Apart from the orders made on 13 July 2018, the plaintiff's Motion is dismissed. (2) Order that the costs of the Motion be costs in the cause. Catchwords: PROCEDURE – application for summary judgment – evidence of facts on which claim is based – evidence of belief that there is no defence – whether the solicitor for the plaintiff is a "responsible person" within the meaning of the UCPR rule 13.1(1)(b) who can give evidence of such belief

PROCEDURE – summary judgment – whether there is a real question of law to be tried

GUARANTEE – whether wide enough to prevent guarantor from raising set-off or counterclaim which would have been available to the principal debtor to extinguish the guaranteed debt

GUARANTEE – construction of guarantee – whether meaning certain – apparent width of possible application – need to determine facts relevant to commercial circumstances which guarantee addresses and objects it is intended to secure – not appropriate to determine construction of guarantee on summary judgment application Legislation Cited: Uniform Civil Procedural Rules 2005 (NSW) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd 162 CLR 549 Australian Broadcasting Commission v Australasian Performing Rights Association Limited (1973) 129 CLR 99 at 109 BOC Group plc v Centeon LLC [1999] 1 All ER (Comm) 970 Bofinger v Kingsway Group Ltd [2009] HCA 44 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Doherty v Murphy [1996] 2 VR 553 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 Langford Concrete Pty Ltd v Finlay [1978] 1 NSWLR 14 Liberty Mutual Insurance Co (UK) Ltd v HSBC Bank plc [2001] Lloyd's Rep Bank 224 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 Webster v Lampard (1993) 177 CLR 598 Texts Cited: New South Wales Civil Procedure Handbook 2018, Lawbook Co O'Donovan and Phillips, Modern Contract of Guarantee, Westlaw AU Ritchie's Uniform Civil Procedure (NSW) Category: Procedural and other rulings Parties: Laurence James Smith (plaintiff) Kelvin Skinner (defendant) Representation: Counsel: R Tregenza (plaintiff) M Wells (defendant)