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Construction

Thursday, 2 October 2014
Executive Summary (One Minute Read)
Ekes v Commonwealth Bank of Australia (NSWCA) - estoppel - earlier Federal Court proceedings - guarantor permitted to file defence and cross-claim
Summaries With Link (Five Minute Read)
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Emmett JA
Estoppel - bank sued guarantor for company's debt - primary judge struck out guarantor's defence, refused leave to file amended defence, and entered judgment for Bank - earlier Federal Court proceedings were set down for hearing but dismissed by agreement - held: primary judge erred in striking out defence and refusing leave to file proposed defence and cross-claim - not so obviously untenable that it could not possibly succeed - issue estoppel, Anshun estoppel, and abuse of process did not apply - loss from loan advances a separate and distinct loss from loss suffered by company - guarantor demonstrated extraordinary dilatory conduct and flagrant disregard for Court's directions - however, because defence should not have been struck out ,relative prejudice in allowing additional claims in cross-claim would be limited.
Ekes