Summary Judgment

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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Capital One Securities v Soda Kids Holdings [2012] VSC 163

The lender obtained summary judgment and an order for possession of the security. The borrower appealed. The test for summary judgment is that the claim or defence has no real prospects of success – section 63(1) Civil Procedure Act. The Appeal Court found that the borrower had arguable defences on the following grounds: The date …

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CBA v Oswal [2012] WASC 128

CBA loaned Garuda money to purchase an aircraft. CBA took a chattel mortgage over the airplane. Garurda defaulted and CBA appointed a receiver which seized the airplane and sold it. There was a shortfall and CBA sued the guarantor. The guarantor accepted there had been default but argued: CBA appointed receivers for an improper purpose–to …

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Westpac v Clayton [2012] NSWSC 283

The borrower acquired six investment properties with bank funding totalling $1.7m. The loan went into default and the bank sought possession. The borrower defended on the grounds that the bank’s demands to repay the loans were invalid and also claimed unconscionable conduct due to alleged representations made by officers of the bank that the loans …

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CBA v Tarrant & Hawkins [2012] NSWSC 165

The borrower wanted to raise a Contracts Review Act defence. The problem was that she had already failed in a bid to raise a Contracts Review Act defence to the predecessor mortgage (in an earlier decided case). The judge commented: Such a circumstance raises very significant problem for Ms Tarrant in the present case in …

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RHG Mortgage Corporation v Astolfi [2011] NSWSC 1526

The borrower defaulted on its mortgage and the lender sought possession. The lender’s claim to possession was not disputed. The court held that the borrower’s defence that her loan had been securitised did not preclude the lender as registered mortgagee from being able to obtain possession based on the indefeasibility provisions of the Real Property …

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Bycoon v Wollongong Truck and Machinery Centre [2011] NSWSC 1323

The liquidator of a company sought possession of the sole asset of the company being premises from which a trucking business was run.  The tenant resisted possession claiming that he had entered into a 12 year lease of land from the company. However because the lease was not registered as required, no legal lease was …

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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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