Set Off

Bank of Western Australia v O’Brien [2012] NSWSC 456

The bank lent money to a company secured by guarantees. Both the loan and the guarantee contained suspension clauses, requiring full payment with no deduction or set-off. The loan became due, the borrowers did not pay and the bank applied for summary judgment. The guarantors filed defences and brought a cross-claim, which the bank argued …

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NAB v Amed [2012] NSWSC 362

The guarantors wanted to raise a defence that the property was sold at undervalue. The court noted that no action lay in negligence: There is no common law duty in negligence which makes a mortgagee liable for common law damages if it fails to obtain a good price for a mortgaged property. The court noted …

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Westpac v Corry [2011] NSWSC 1014

The bank sought possession of property mortgaged to the bank by the borrowers and summary judgement. The borrower’s defence was struck out and in their cross-claim, claimed misleading and deceptive conduct and unconscionable conduct under section 52 and 51AC of the Trade Practices Act 1974 (Cth) respectively. Their claim alleges that the bank manager represented …

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Perpetual Trustee Company v Kwok [2011] NSWSC 422

This involved a loan for 35 million secured over Minto shopping centre. The loan went into default and the lender sued the guarantor. The guarantor sought to raise the defence of set-off based on losses allegedly caused to him by the lender. This was rejected by the Judge who noted: The alleged breaches arose out …

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Victorian Securities Corporation v Icehot [2010] NSWSC 1413

The lender obtained judgment against a guarantor. The guarantor sought to stay bankruptcy proceedings on the grounds that he had needed time to prosecute a set-off against the lender in another set of proceedings (arising from the loan). The Judge refused to stay of the judgement because a clause in the guarantee stated: Until the …

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