Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd

[2010] NSWSC 1078

CITATION:	Suncorp-Metway Limited v Nam Property Holdings Pty Limited [2010] NSWSC 1078
HEARING DATE(S):	15 September 2010
JUDGMENT DATE :	20 September 2010
JUDGMENT OF:	Garling J
DECISION:	Judgment for the plaintiff. Judgment for the plaintiff for possession of mortgaged property. Dismiss the defendant's cross-claim.
CATCHWORDS:	PRACTICE AND PROCEDURE – Summary judgment – Whether the proposed defence demonstrates the claim – Whether the Court has all the requisite material to reach a definite and certain conclusion. - PRACTICE AND PROCEDURE – Summary dismissal of cross-claim – Whether the proposed amended cross-claim has any prospects of success. - EQUITY- Unconscionable conduct – Defendant’s directors unable to speak or read English – Whether bank could reasonably have known any facts or matters so as to make its conduct unconscionable. - MORTGAGES AND SECURITIES – Default – Recovery of money.
LEGISLATION CITED:	Real Property Act 1900, s 57(2)(b), s 57(5) Trade Practices Act 1974 (Cth)
CATEGORY:	Procedural and other rulings
CASES CITED:	Burt v Australian & New Zealand Banking Group Limited (1994) ATPR (Digest) 46-123 CIT Credit Pty Limited v Keable [2006] NSWCA 130 Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Kurnell Developments Pty Ltd v Orica Australia Pty Ltd [1999] NSWCA 163 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 Wilton v Farnworth (1948) 76 CLR 646
PARTIES:	(P) Suncorp-Metway Limited (D) Nam Property Holdings Pty Limited
FILE NUMBER(S):	SC 2010/070399
COUNSEL:	(P). N. Kidd (D) J. Baird
SOLICITORS:	(P) Allens Arthur Robinson (D) Barraket Ronayne

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

MONDAY, 20 SEPTEMBER 2010

2010/070399 SUNCORP-METWAY LIMITED v NAM PROPERTY HOLDINGS PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff Suncorp-Metway Limited claims by way of notice of motion filed on 10 August 2010 summary judgment in its favour on its claim and the summary dismissal of the cross-claim filed by Nam Property Holdings Pty Limited.

2 The matter was heard in the course of the Duty List when Mr Kidd appeared for Suncorp-Metway, and Mr Baird appeared from Nam Property.

Amendment of Statement of Claim

3 The first issue which was dealt with at the hearing was whether Suncorp-Metway ought have leave to amend its statement of claim. The amendments largely related to the amounts of money owing under the loan facility and provided more updated details of those sums having regard to payments which had been made by Nam Property after the original statement of claim had been filed.

4 Nam Property did not object to the amendments.

5 There is no reason why the amendments ought not be granted. Nam Property did not seek any adjournment in order to deal with them nor did it suggest that it was in any way prejudiced.

6 Leave will be granted to Suncorp-Metway to amend its statement of claim. It will be necessary for that amended document to be filed in the Registry.

Amended Defence and Cross-Claim

7 Nam Property sought leave at the hearing of the matter to file an amended defence and an amended cross-claim.

8 Suncorp-Metway opposed leave arguing that having regard to all of the facts and circumstances, to grant leave to amend would be futile because the defence did not disclose any arguable defence and the cross-claim did not, in its current form, disclose any viable cause of action.

9 As well, Suncorp-Metway submitted that there was no prima facie evidence which had been adduced which suggested the claim of unconscionable conduct which was made against it: Kurnell Developments Pty Ltd v Orica Australia Pty Ltd [1999] NSWCA 163 at [74].

10 It will be appropriate to first determine the application of Nam Property to amend its pleadings.

11 I note the similarity between the legal tests which must be applied when considering the amended defence and cross-claim and those governing summary judgment. I will give those principles attention later in this judgment.

12 In order to understand the defence and cross-claim in their amended forms, it is necessary to recount some of the underlying factual material.

Original Dealings

13 According to the unchallenged evidence of Hoang Nam Duong, who is a director of Nam Property, in late September 2006 he was approached by Ngoc Vuong Nguyen, a broker who operated a business called Ezy Finance, with an offer to loan him some money.

14 Hoang Nam Duong does not speak or read English. Together with his wife, Bach Truc Thi Duong, he was a director of Nam Property which was said to be the trustee of the Duong Superannuation Fund. Apparently, Nam Property operated the Monte Carlo Reception Restaurant at 58 Spencer Street, Fairfield. It was there that Duong came into contact with Nguyen the broker. The broker introduced Duong to Mr Malcolm Withers, who was at the relevant time the commercial broker manager for Suncorp-Metway. It does not appear that Mr Withers had any lengthy or detailed conversation with Duong. Rather it appears that Duong’s conversations were held entirely with Nguyen in, I infer, the Vietnamese language.

15 For the purposes of this transaction with Suncorp-Metway, Nam Property retained a firm of solicitors by the name Andy Pham Lawyers. It was agreed that those lawyers spoke Vietnamese and offered their legal services to their clients, where necessary, in the Vietnamese language.

16 By lengthy letter dated 27 February 2007, Suncorp-Metway offered Nam Property a loan which totalled $3,015,000, comprising of two loan facilities, one for $2,814,000 and the other for $201,000. It would appear that the higher of those two facilities was intended to be used for the purpose of a repayment of existing borrowings from the Westpac Banking Corporation, and the lesser of the two facilities was intended to be spent on the restaurant to undertake some renovations to the bar area.

17 The offer, which was a detailed one, required that Nam Property enter into a Credit Facility Deed and provide security by way of registered mortgages over three properties, and a charge over all of the assets and undertakings of Nam Property. As well, the two directors were required to give a guarantee and indemnity and another company, Helen & Nam Pty Ltd, was required also to give a guarantee and indemnity.

18 The offer was expressed to be open for a period of 14 days.

19 The evidence reveals that Nam Property, and each of those people required to give guarantees, signed an acceptance of the offer.

20 On 27 March 2007, Nam Property entered into a Credit Facility Deed and provided a mortgage to Suncorp-Metway over the identified security properties. That mortgage had as part of its terms and conditions a standard memorandum of common provisions which was registered no. AB366821L.

21 On 27 March 2007, Nam Property and each of the guarantors signed an acknowledgement with respect to that memorandum in which they said:

“The borrower/mortgagor and guarantors hereby acknowledge that they have received a copy of this memorandum which they have read (or had read to them) and that they understand the contents of it and that it forms part of the mortgage.”

22 The evidence of the transaction is helpfully encapsulated in the affidavit of Roger John Cornforth to which no objection was taken. Mr Cornforth was at the time the solicitor acting for Suncorp-Metway. Mr Cornforth deposes that on 15 January 2007 he received a facsimile from Andy Pham Lawyers informing him that they acted for Nam Property and asking that all loan documents for the transaction be forwarded to that firm of lawyers.

23 After some initial correspondence, on 5 March 2007, Mr Cornforth sent to Andy Pham Lawyers, all of the documents which required completion before the loan could be made. Included in those documents was a declaration by the borrower that it had received independent advice with respect to the transaction.

24 On 8 March 2007, Andy Pham Lawyers returned all of the documentation to Mr Cornforth. On that day, and later in the course of the transaction, Andy Pham Lawyers sent to Mr Cornforth a number of declarations with respect to the documents and the receipt of advice. They included the following:

(a) One dated 6 March 2007 executed by the directors of Nam Property and subscribed in accordance with the Oaths Act 1900 which said that the directors “ had received independent legal advice regarding the loan and security documents …” and it further declared that the directors had signed the relevant mortgage and security documents freely and voluntarily having received that independent legal advice;

(b) As well the guarantors signed appropriate like declarations; and

(c) A certification dated 27 March 2007 which said:

“The Borrower, Mortgagor and Guarantor hereby declare and confirm that we have each been provided with a coy of the security documents by our Solicitor(s) and that these documents have been explained to us by our Solicitor(s) and we understand the nature and effect of those documents. We further confirm we were not placed under undue influence or pressure by any person to execute the security documents and confirm that the Mortgagee has suggested we each obtain independent legal advice and we have each taken legal advice.”

25 On 14 March 2007, Andy Pham Lawyers sent by facsimile to Mr Cornforth a copy of the minutes of a meeting of directors of Nam Property which had been held that day at North Parramatta. The minutes of the company’s meeting recorded the following:

“The directors of Nam Property Holdings Pty Limited (‘the Company’) have resolved that Nam Property Holdings Pty Limited to discharge the current commercial loan with Westpac Banking Corporation (Business Development Loan in the amount of $2.2M) and further discharge the Commercial Loan Agreement with Westpac Banking Corporation in the amount of $320,000.
The following issues have been discussed and decisions made accordingly:
All property assets of Nam Property Holdings Pty Limited are to be used for subsequent mortgage and securities to an incoming mortgagee;
All mortgages to Westpac Banking Corporation be discharged;
All caveats against Nam Property Holdings Pty Limited be withdrawn and liabilities to the caveators, namely Thi Thuy Vinh Nguyen, be paid out.
It has been resolved amicably that Suncorp-Metway is the preferred incoming mortgagee to provide a subsequent mortgage in the amount of $3,015,000.”

26 There was considerable amount of other correspondence between the solicitors. It is not necessary for the purpose of this motion to refer to it in detail. However, looked at compendiously, it is clear that Nam Property had invested in a number of commercial properties which it offered for lease, it operated the function centre to which I have earlier made reference, and seemed to be able to undertake all of those matters in an appropriate and commercial manner. It is clear that the company had access to solicitors and accountants, and there is no suggestion in any of that correspondence of any incapacity for the company to operate, or else any difficulty in undertaking what appears to be quite sophisticated commercial dealings. In particular, it does not appear that the lack of fluency in the English language in any way impeded these commercial operations.

27 The loan transaction was settled on 27 March 2007 and on that day the money was paid by Suncorp-Metway to Nam Property in accordance with the directions given to Suncorp-Metway by Andy Pham Lawyers.

28 The term of each loan was three years from the date of first drawdown. Accordingly, unless other arrangements were made, Nam Property was obliged to repay both loans in their entirety on or before 27 March 2010.

29 It was agreed by all parties that the loans had not been repaid and that Suncorp-Metway was now entitled, at least by reason of the effluxion of the term of the loan, to the repayment of its funds.

30 The parties did not agree on the precise sum of money outstanding. The reason for this is that there was disagreement between the parties about whether it was appropriate for Suncorp-Metway to debit the accounts with the higher rate of interest and if so from what date. It appears that the smaller of the two loans first fell into default on 28 October 2009 when a payment made by the company was dishonoured, and it would appear that payments have not been made since.

31 So far as the larger loan was concerned, although during 2007 there appear to be some difficulties with the account, which perhaps continued into 2008, the account seems to have been restored to a reasonable position until about April 2009, when the account fell into arrears and the higher interest rate was charged.

32 According to the evidence of Scott Andrew Fanshawe, as at 13 September 2010, the current balance of the accounts outstanding are respectively:

(a) $73,036.67 being the balance of account number 1-152360-8;

(b) $2,141,565.77 being the balance of account number 1-152365-9.

33 This evidence was not challenged. Although Nam Property advances various arguments, I see no reason to reject the evidence of Mr Fanshawe in what is outstanding.

34 Against this factual background, it is appropriate to examine the proposed amended defence.

Proposed Amended Defence

35 The proposed amended defence largely admits the initial transaction. It admits that the company Nam Property entered into the agreement and that it received the various sums of money and it admits that it entered into the relevant mortgage.

36 The proposed amended defence also goes on to address the entitlement of Suncorp-Metway to exercise any purported “Right to Accelerate”. The defence is in the following terms:

“7. The defendant denies paragraph 10 of the Statement of Claim, and in further answer denies that the plaintiff was entitled to exercise any purported Right to Accelerate as pleaded by reason of the provisions of Section 57 of the Real Property Act. 1900 (NSW).

8. In answer to paragraph 11 of the Statement of Claim, the defendant denies that it was liable at law to pay the said amount as demanded or at all.

9. In answer to paragraph 12 of the Statement of Claim, the defendant admits service of the said notice pursuant to Section 57(2)(b) of the Real Property Act 1900 (NSW), but denies the validity of the said notice or that it was liable at law to pay the amount demanded therein or at all.”

37 The argument is that it was first necessary for Suncorp-Metway to issue a notice under s 57(2)(b) of the Real Property Act 1900 with respect to the interest default and then only if that interest default was not remedied could the “right to accelerate” be engaged and it would be necessary for a further s 57(2)(b) notice to be served, relying upon the outstanding principal. Nam Property relied upon the provisions of s 57(5) of the Real Property Act 1900 to support this submission.

38 Suncorp-Metway argued that the terms of the Credit Facility Deed, because it was not a mortgage, were not caught by the provisions of s 57(5) and therefore it was entitled to issue the original s 57(2)(b) notice in the form in which it did.

39 Suncorp-Metway also argued that since the orders sought in its motion did not include any order for the exercise of a power of sale, the defence was irrelevant. As well, Suncorp-Metway submitted that since the term had now expired on the loans, the issue of the right to accelerate was moot.

40 I agree that this s 57 issue is not relevant. If Suncorp-Metway does seek to exercise a power of sale, or perhaps obtain leave to issue a writ of possession, it may need to give attention to this argument, but it is not a barrier to the relief sought by the amended statement of claim or this motion.

41 In these circumstances, there is no reason to refrain from entering judgment for the monetary sum due and to enter judgment for possession of land simply because an appropriate s 57(2)(b) notice has not been served.

42 As I have noted, Suncorp-Metway will not be able to exercise its right to sell the property unless and until an appropriate s 57(2)(b) notice has been served.

43 As well, this argument may in fact be academic because of the failure by the company to repay the principal of the loans within the time specified of the terms for which the money was advanced.

44 The proposed amended defence also seeks to rely upon the matters raised in the proposed amended cross-claim. These will be examined later in this judgment.

Summary Judgment

45 The principles upon which a court is entitled to give summary judgment are very well known.

46 It is for Suncorp-Metway to demonstrate that there is an absence of a defence and to do so clearly and convincingly: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129 per Barwick CJ; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J.

47 Barwick CJ, said at 128-129,

“The jurisdiction summarily to terminate an action is to be sparingly employed, it is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.”

48 As is clear from the decision of the NSW Court of Appeal in Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37] per Pearlman AJA (Hodgson and Ipp JJA agreeing), these principles are equally applicable to an application for summary judgment.

49 I am satisfied that this is one of those unusual cases where the facts are clear and I have all of the requisite material and necessary assistance from the parties to reach a definite and certain conclusion.

50 In my opinion, Suncorp-Metway is entitled to summary judgment for the loan facility because neither the defence nor the proposed amended defence demonstrate any defence to the claim made by Suncorp-Metway. The monies are due and owing. They have not been repaid. The monies were spent for the benefit of Nam Property. There is no basis for denying that they are payable forthwith.

51 I will make orders in due course for the entry of a monetary judgment.

Amended Cross-Claim

52 The amended cross-claim seeks orders in the following terms:

“1. An order that mortgage registered number AD39053 (‘the mortgage’) be set aside;

2. An order that the plaintiff/cross-defendant execute and deliver to the defendant/cross-claimant a discharge of the mortgage;

3. Such further or other relief as the nature of this case may require;
4. Costs.”

53 The basis for the cross-claim seems to be as follows:

(a) The directors of Nam Property were neither able to speak or read the English language and that they were “functionally illiterate” in the English language;

(b) At the time Nam Property executed the mortgage, it did so without having received any, or any proper, explanation of the legal, practical and financial effect of the mortgage, including the meaning and effect of any right to accelerate clause contained in the mortgage; and

(c) The combination of (a) and (b) meant that the company was under a special disadvantage which was known or ought reasonably to have been known to Suncorp-Metway and that in accordance with the equitable jurisdiction of the court in cases of unconscionability, the court would set the mortgage aside.

54 In addition, the proposed amended cross-claim raises a claim for relief under s 51AC of the Trade Practices Act 1974 (Cth). That section, which is directed to the prohibition of unconscionable conduct by a corporation in trade or commerce in connection with the supply of services to a person such as Nam Property, is one which calls up for consideration matters which are closely linked with the process of determining unconscionability in the application of equitable principles.

55 Bryson J said in Burt v Australian & New Zealand Banking Group Limited (1994) ATPR (Digest) 46-123 at 53,597-53,598, this:

“The ordinary means of establishing in honesty and fair dealing that a person with whom one is dealing knows the nature and terms of a document which one proposes should be signed is to put the document before that person for signature. The opportunity to find out what is in the document is there, available to that person, who can use the opportunity in whatever manner is thought right. Unless the person with whom one is dealing is known to be at some special disadvantage, this is as much as conscience requires. There is no reason why it is unconscionable per se for a bank to deal with and take a guarantee from a person who is closely related to or otherwise well disposed towards a customer; indeed that is the ordinary case in which a guarantee is available. Unconscionability is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person’s legal rights.”

56 The reasoning of Bryson J is applicable to claims under s 51AC of the Trade Practices Act: CIT Credit Pty Limited v Keable [2006] NSWCA 130 at [76] per Spigelman CJ (Giles JA and Gzell J agreeing).

57 The mere lack of understanding of a document is not necessarily supportive of having the document set aside. As Latham CJ said in Wilton v Farnworth (1948) 76 CLR 646 at 649:

“In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, in proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every day business transactions.”

58 This passage was quoted with approval by the High Court of Australia in Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at [45]:

“It should not be overlooked that to sign a document known and intended to effect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.”

59 These are relevant principles to bear in mind when applying s 51AC of the Trade Practices Act to reach a finding of “unconscionability”.

60 It seems to me that if reliance was only placed on those principles, that would lead to a rejection of the application to amend the cross-claim. However, a question arises though by reason of the provisions of paragraph 9 of the cross-claim whether that position enures.

61 It is appropriate to set out the entirety of paragraph 9:

“9. Further, or in the alternative, by reason of the matters aforesaid and those particularised below the Cross-Defendant has engaged in conduct that is in all the circumstances unconscionable within the meaning of the general law and/or Section 51 AC of the Trade Practices Act, 1974 (Cth).
Particulars
(a) The relative strengths of the bargaining positions of the Cross-Defendant and the Cross Claimant;
(b) That the Cross-Claimant was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the Cross-Defendant, namely the aforesaid right to accelerate clause in the Mortgage;
(c) That the Cross-Claimant by its aforesaid directors and shareholders was not able to understand, to the knowledge of the Cross-Defendant, the Mortgage and documents;
(d) That the Cross-Claimant by its said directors and shareholders did not receive to the knowledge of the Cross-Defendant independent legal and financial advice at the time of execution of the Mortgage on 6 March 2007 or subsequently prior to 27 March 2007;
(e) That Cross-Defendant failed to make known to the Cross-Claimant the risk to the Cross-Claimant, in the event of default on the part of the Cross-Claimant in making any monthly repayment, of the Cross-Defendant exercising or purporting to exercise the said putative right to accelerate clause in the Mortgage, being a risk that the Cross-Defendant should have foreseen would not be apparent to the Cross-Claimant;
(f) The extent to which the Cross-Defendant acted in good faith; and
(g) The conduct of the Cross-Defendant in accepting a purported guarantee from Helen & Nam Pty Ltd of the obligations of the Cross-Claimant in circumstances where the signature of one of the directors of that company, namely Helen Duong, on such guarantee was forged and the subject loan to the Cross-Claimant would not have been approved or advanced by the Cross-Defendant without the support of the purported guarantee.”

62 As is essential to an allegation of unconscionability it is alleged that Suncorp-Metway knew that the directors of Nam Property were not able to understand the mortgage and the documents. It is also alleged that Suncorp-Metway knew that the directors of Nam Property did not receive independent legal and financial advice at the relevant time, and that Suncorp-Metway failed to act in good faith. It would also be sufficient if it was alleged that Suncorp-Metway ought to have known of these matters.

63 In addition there is an allegation that a guarantee from Helen & Nam Pty Limited included a signature of a director which was forged. It is not said that Suncorp-Metway knew of this.

64 Mr Baird frankly conceded that he would not be able to call the finance broker Nguyen to give evidence at a hearing because since the events in question Nguyen had suffered a serious brain injury as a consequence of an accident and now is not able to give an account of the circumstances leading up to the acceptance of the offer from Suncorp-Metway and the completion of the relevant documents.

65 However, it is appropriate to shortly examine the evidence which is available on this motion to make an assessment of the viability of the proposed amended cross-claim, in the sense of there being prima facie evidence available of unconscionability.

66 In doing so, it is necessary to keep in mind the terms of the certificates and declarations to which I have earlier made reference.

67 The evidence from Hoang Nam Duong on this application was that Mr Withers would attend at the restaurant on more than one occasion. It is submitted that I should infer, in light of the evidence of Hoang Nam Duong, that he did not speak or understand English, that at no time did he have a conversation with Mr Withers in the English language. I will do so.

68 On an occasion in January 2007 (which is some time before the relevant offer was made and the loan finalised), Duong gives evidence of a visit to the restaurant by Nguyen the broker, and Mr Withers, at which a set of documents was produced by Nguyen. He gives evidence that after Nguyen outlined some details of the loan and in particular that the loan would be secured by all three of the properties owned by Nam Property, he said words to this effect:

“It is my understanding that the only security for the additional money will be the Fairfield property.”

And Nguyen replied:

“I will fix it.”

69 Hoang Nam Duong also gives evidence that he complained about his daughter, Helen Duong’s name being involved in the transaction, and was told that it would be removed.

70 There is no evidence that any of these matters were brought to the attention of Mr Withers.

71 However, Mr Baird submits, that having regard to the fact that Mr Withers obviously had a close relationship with Nguyen, because he attended at the restaurant with him on a number of occasions, it is highly likely that Nguyen would have communicated to Mr Withers what Duong had told Nguyen. In those circumstances, Mr Baird submits that there is some evidence from which a court might infer, if there was no other evidence, that Suncorp-Metway were on notice of the special disadvantage and the difficulties which have been pleaded in the amended cross-claim.

72 I think that this inference is not rationally available. Even if it was, the meeting was too early in the development of the transaction for any such complaint to affect the transaction.

73 Duong also gives evidence that the broker, Mr Nguyen, sent him to see Andy Pham and that he received little or no advice in fact from Mr Pham. It seems to be submitted that I ought infer from that that Andy Pham was not independent. I am not prepared to do so.

74 In considering the submissions of Suncorp-Metway that the proposed amended cross-claim ought not be allowed, I have kept in mind the principles of law to which I have earlier referred about the limits on the exercise of the Court’s jurisdiction to summarily terminate the proceedings.

75 But in this case, the evidence is overwhelming that Suncorp-Metway did not know of any fact or matter, with the exception of the fact that Duong spoke in Vietnamese and not English, raised by the proposed amended cross claim. Nor could it reasonably have known any of those facts or matters, as at March 2007 so as to make its conduct unconscionable.

76 What it did know was that the loan was being made for business purposes, it was for a very significant sum of money, that Nam Property was engaged in a series of commercial dealings with respect to its commercial property holdings, that it was operating a restaurant and function centre which was apparently successful, that Nam Property had access to solicitors and accountants to advise it, and that the purpose of the major components of the loan was to effect a refinancing of debt which already existed.

77 The mere fact that Duong spoke Vietnamese only and not English would not have led to any reasonable contemplation that there was a disadvantage of a kind for the company which would have resulted in equity relieving the conduct of Suncorp-Metway on the basis that it had acted unconscionably.

78 The evidence of Duong, which I accept was unchallenged, about the occasions of the visits of Mr Withers to his restaurant, do not rise to any height sufficient to address any issue of unconscionability as at March 2007.

79 As well, the terms of the documents signed by the directors of Nam Property and guarantors make it plain beyond argument that they were content for Suncorp-Metway to enter into the transaction upon the basis of their representation that they had read the documents, they understood them, they had obtained legal advice about them, and were acting on the basis of that advice.

80 In all of those circumstances I am well satisfied that the proposed amended cross-claim has no prospect of success. It would be futile to allow it to be filed.

81 Accordingly, it is appropriate to grant the plaintiff’s application for summary judgment.

Orders

(1) Grant leave to the plaintiff to file an amended statement of claim.

(2) Refuse leave to the defendant to file an amended defence.

(3) Refuse leave to the defendant to file an amended cross-claim.

(4) Judgment for the plaintiff in the sum of $2,214,602.44.

(5) Judgment for the plaintiff for possession of land comprised in Folio Identifier 10/SP33492 being land situated and known as 10/64 Ware Street, Fairfield, NSW, 2164.

(6) Dismiss the defendant’s cross-claim against the plaintiff

(7) The defendant to pay the plaintiff’s costs.

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