Benchmark (Aust) Pty Limited v National Australia Bank Limited

Benchmark (Aust) Pty Limited (the applicant) sought leave to appeal against a summary judgment granted by the primary judge in favour of National Australia Bank Limited (the respondent). The dispute concerned the respondent's claim against the applicant under a guarantee. The primary judge had found the applicant's defence to be groundless, leading to the summary judgment.

The court was required to determine whether the primary judge erred in granting summary judgment, specifically whether the applicant had demonstrated any error in the primary judge's assessment of its defence. This involved considering the construction of the guarantee and whether a later guarantee had supplanted an earlier one, and whether the applicant's subjective understanding or post-contractual conduct was relevant to the interpretation of the guarantee.

The court held that the construction of the guarantee was to be determined objectively, and that the subjective understanding of one party or post-contractual conduct was not relevant to that determination. The applicant had failed to demonstrate any error in the primary judge's finding that its defence was groundless. Accordingly, the application for leave to appeal was dismissed.

The orders made were that the application for leave to appeal be dismissed and that the applicants pay the respondent's costs of the application for leave to appeal.