St George Bank Ltd v Field - [2007] NSWSC 902

CITATION: St George Bank Limited v Archer Philip Field [2007] NSWSC 902
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 August 2007

JUDGMENT DATE :
8 August 2007

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: McDougall J at 1

DECISION: See paragraph [21] of judgment

CATCHWORDS: PRACTICE AND PROCEDURE – Practice Note SC Eq 3 – Whether amended commercial list response should be struck out – Whether plaintiff entitled to summary judgment – No question of principle.

LEGISLATION CITED: Section 420A of the Corporations Act
Trade Practices Act
National Parks and Wildlife Act 1974

CASES CITED: Buckeridge v Mercantile Credits Limited (1981) 147 CLR 654
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 6] [2007] NSWSC 124
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

PARTIES: St George Bank Limited (Plaintiff)
Archer Philip Field (Defendant)

FILE NUMBER(S): SC 50053/07

COUNSEL: P Dowdy (Plaintiff)
G Rundle (Defendant)

SOLICITORS: Henry Davis York (Plaintiff)
Archer Philip Field (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

8 August 2007 (ex tempore – revised 8 August 2007)

50053/07 ST GEORGE BANK LIMITED v ARCHER PHILIP FIELD

JUDGMENT

1 HIS HONOUR: On 24 May 2004 the plaintiff (St George) agreed to advance up to $5.88 million to Jenolan Caves Resort Pty Limited (JCR) pursuant to a commercial bill facility, the terms of which were described in a letter of 21 April 2004 from St George to JCR. One of the terms of that facility was that the defendant (Mr Field) should give an unlimited guarantee and indemnity. Mr Field acknowledged that obligation by his execution of the letter. In fact, as the letter made plain, Mr Field had executed a deed of guarantee and indemnity in favour of the bank some seven years earlier, on 8 May 1997. It is uncontested that the effect of the letter of offer, accepted by Mr Field, is that his guarantee and indemnity of 8 May 1997 extends to the facility granted by the letter of offer.

2 The terms of the letter of offer provided that it would have a duration of 12 months from the first drawdown under the facility. They contemplated also that bill might be rolled over from time to time, but on the proper construction of the document there is no promise in it to extend the facility beyond the term of 12 months from the first drawdown.

3 The facility was not extended. On 4 November 2005, St George made a demand on JCR for payment of the amount owing under the facility. Some seven months later, on 8 June 2006, St George made demand on Mr Field pursuant to his guarantee. Some nine months later again, on 23 April 2007, St George commenced these proceedings, seeking to recover against Mr Field under the guarantee.

4 Mr Field’s first attempt to file a commercial list response was completely…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 902
Decision Date: 8 August 2007

CaseChat Overview and Summary

St George Bank Limited sought to recover a debt from the defendant, Field, through the Supreme Court of New South Wales. The dispute centred around whether Field had breached a loan agreement, and the bank's subsequent entitlement to claim the outstanding debt. The court was asked to consider the bank's application to strike out Field's amended response on the commercial list and to grant the bank summary judgment.

The legal issues before the court were whether the amended response should be struck out for non-compliance with the practice note and whether the bank was entitled to summary judgment. The court had to examine the nature of Field's response, the effect of the bank's application to strike it out, and the evidence presented to determine if the bank had a clear entitlement to judgment without a trial. The court also needed to consider whether any question of principle was involved in making its decision.

The court found that the amended response did not require striking out as it substantially complied with the requirements of the practice note, and the bank had not demonstrated a significant prejudice. The court concluded that the bank was entitled to summary judgment as the undisputed facts established the bank's claim. The court held that no question of principle was involved in the matter, thus allowing the bank's application for summary judgment. The bank was granted judgment in the amount of the debt owed, with interest and costs.

Orders