$47,763,997.46 – Summary Judgment Application

St George Bank Limited v Wright & Ors [2009] QSC 337

Justice McMurdo entered summary judgment in the amount of $47,763,997.46, in respect of an application brought by St George Bank Limited on guarantees and indemnities given. The defence in part was that the second tranche of the advance had not been made and accordingly the agreement not fulfilled, voiding the guarantees and indemnities. This argument failed on the evidence and further on the loan documentation, in particular:

[43] However, by cl 8.1 of the guarantee and indemnity it was provided as follows: “8.1 Rights given to us under this guarantee and indemnity and your liabilities under it are not affected by any act or omission by us or by anything else that might otherwise affect them under law or otherwise, including:

(a) the fact that we vary or replace any arrangement under which the guaranteed money is expressed to be owing, such as by increasing the credit limit or extending the term; or

(b) the fact that we release the customer or give them a concession, such as more time to pay; or…”

The parties have thereby agreed that an omission by the bank to provide the financial accommodation in full and according to the facility agreement with Ronbar will not affect the bank’s rights under the guarantee and indemnity, and nor would those rights be affected by some variation of that agreement between or some concession given to it. The submissions by the defendants made no attempt to address the impact of cl 8.1.

Justice McMurdo refused the application for an adjournment on the basis of disclosure becoming available during litigation and concluded:

[61] It follows that the defendants have no real prospect of successfully defending the plaintiff’s claim and there is no need for a trial of the claim. It was urged that the defendants should have the opportunity to uncover something by the process of disclosure of documents. However, this seems to be in the hope that something will be disclosed which will identify a defence not presently formulated, because those defences which have been pleaded or argued have no real prospects and could not be improved by disclosure.

Brisbane Barrister – David Cormack

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