Bank of Western Australia Ltd v Tumuluri [2011] NSWSC 832

A guarantor tried to raise two fresh defences on the morning of his hearing on the basis the guarantee was unenforceable for noncompliance with section 50 of the Consumer Credit Code and section 20 of the Consumer Credit Regulation and the loan guaranteed was not validly executed.

The court held that the Code did not apply to the guarantee because the loan debtor is a company and the Code only applies to a guarantee if the loan debtor is a natural person ordinarily resident in NSW. The court also dismissed the other defence that the loan was not validly executed because that defence was not supported in any way by any material before the court nor was the court told what that evidence might be.

The court held that the interests of justice demand the trial proceeds on the basis of the pleadings and the evidence that has been served and to do adjourn now would be a grave disadvantage where the parties are prepared for trial.

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