Hausman & Anor v Abigroup Contractors Pty Ltd

(2009) 29 VR 213; [2009] VSCA 288

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Defendant's obligation to show cause
4. › Evidentiary requirements for opposing summary judgment
5. › Whether affidavit material sufficient to raise triable issue
6. › Allegation of fraud or misrepresentation
7. › Degree of particularity required
8. › Rules of the Supreme Court (Qld), O 22 rr 22.02, 22.03, 22.04
1. Contract
2. › Guarantees
3. › No set-off clauses
4. › Whether clause precluding set-off and counterclaim can prevent reliance on vitiating factors
5. › Distinction between true counterclaims and defences going to validity of guarantee
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Section 52 Trade Practices Act 1974 (Cth)
4. › Relief under s 87(2)(a)
5. › Whether guarantee could be declared void
6. › Requirement to establish inducement and reliance
1. Equity
2. › Rescission
3. › Misrepresentation
4. › Whether misrepresentation inducing guarantee constitutes vitiating factor notwithstanding no set-off clause

Quick Take

A 'no set-off' clause in a guarantee may preclude a guarantor from raising a counterclaim for damages but does not necessarily prevent reliance on vitiating factors (such as misrepresentation or misleading conduct under s 52 TPA) that go to the validity of the guarantee itself. However, a guarantor opposing summary judgment must adduce sufficient particularised evidence of inducement by misrepresentation; a general assertion of misrepresentation without evidence of reliance and inducement will not suffice to raise a triable issue.