Goh v First Industries Corp

[2002] WASCA 341

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Appeal from summary judgment
4. › Whether arguable defence established
5. › Loan agreement
6. › No error in granting summary judgment
1. Contract
2. › Rectification
3. › Common mistake
4. › Unilateral mistake
5. › Whether evidentiary basis for rectification where currency of loan disputed
6. › No evidence of mistaken belief
1. Contract
2. › Implied terms
3. › Co-operation
4. › Whether implied terms breached by conduct unrelated to performance of loan agreement
5. › Loan agreement for repayment of money
1. Contract
2. › Set-off
3. › Exclusion clause
4. › No set-off clause in deed
5. › Whether contractual exclusion of set-off effective to preclude equitable set-off

Quick Take

A contractual 'no set-off' clause in a loan deed precludes a borrower from raising a set-off defence to a claim for the liquidated debt, though it does not preclude a separate action. A cross-claim based on conduct arising after execution of a loan deed, connected to the deed only by the existence of the repayment obligation, does not 'impeach' the lender's claim so as to give rise to equitable set-off. The potential rollover or extension of a loan may arguably constitute a 'possible supply of services' under s 51AC of the Trade Practices Act, but this was assumed without being decided.