NAB v Hashem, Tony

[2009] VCC 1037

IN THE COUNTY COURT OF VICTORIA Revised from

Transcript

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST

BANKING & FINANCE CASES DIVISION

Case No. CI-08-03007

NATIONAL AUSTRALIA BANK LIMITED	Plaintiff
(A.B.N. 12 004 044 937)
v
TONY HASHEM	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2009
DATE OF JUDGMENT:	1 September 2009
CASE MAY BE CITED AS:	NAB v Hashem, Tony
MEDIUM NEUTRAL CITATION:	[2009] VCC 1037

REASONS FOR JUDGMENT

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Catchwords: Banking and Finance – guarantees – proof required in circumstances where matter proceeds undefended.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T. Di Lallo	Thomson Playford Cutlers
For the Defendant	No appearance	No appearance
HER HONOUR:

1. This matter concerns a simple claim based on two guarantees. It has proceeded undefended in circumstances where I previously ruled that it was appropriate to do so pursuant to Rule 49.02(1)(b) following the withdrawal of the defendant’s counsel and solicitor.[1]

   [1]             See transcript in this proceeding at 53-54

2. Incorporation of the plaintiff is admitted. In relation to other matters requiring proof, I have heard from five witnesses from the bank. Mr Stewart to prove the signing of what is referred to as a “second guarantee” in paragraph 11 of the statement of claim. Mr Woods, to prove the “first guarantee” referred to in paragraph 6. Mr Aldous to prove the execution of the demands referred to in paragraphs 8 and 13. Ms Guiliano to prove service of the demands in paragraphs 9 and 14 and finally Mr Kozlowski, who proved the quantum by the provision of a certificate of indebtedness.

3. I am satisfied that I can rely on those witnesses whose evidence has not been the subject of any challenge.

4. I have examined the defence and counterclaim that has been filed in this case. The notice of defence and counterclaim dated 10 August, 2009 places much reliance on alleged representations which have not been particularised, nor have they been the subject of any evidence. They do not present any obstacle to a judgment for the plaintiff.

5. I have also canvassed with Mr Di Lallo, counsel for the plaintiff, some of the other defences that are raised, which appear to be:

• a lack of consideration;

• an allegation that there is an undisclosed rebate;

• various other concerns raised about quantum; and

• a suggestion that Buzz Investments Pty Ltd (a primary debtor) was deregistered.

1. In terms of the lack of consideration point, Mr Di Lallo satisfied me that the guarantees have been executed as deeds and therefore consideration is unnecessary.

2. In terms of the rebate and quantum issues, Clause 22.2 of the guarantees in both cases state that to the full extent permitted by law the certificate is sufficient evidence of the accuracy of its contents. Again, in the absence of any direct challenge, I am satisfied that the certificate is evidence of the quantum claimed in this case.

3. Finally, the allegation of the deregistration of Buzz Investments Pty Ltd is not sound given the company search which has been tendered before me shows that Buzz Investments Pty Ltd is in fact registered.

4. Therefore, in the light of all of those matters and relying on Mr Kozlowski's evidence as to the quantum sought, there should be judgment for the plaintiff against the defendant in the sum of $410,063.04.

5. The counterclaim is based on the misrepresentations referred to in paragraph 6(b) and (c) of the defence. As I have indicated already, such misrepresentations have not been particularised nor the subject of any evidence. I therefore accept the Plaintiff’s submission that the counterclaim should be dismissed and I so dismiss it.