Oswal v Commonwealth Bank of Australia

[2013] WASCA 58

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Loan agreement
4. › Break costs clause
5. › Whether break costs payable on compulsory principal repayment
6. › Whether clause confined to voluntary repayments
1. Contract
2. › Construction
3. › No set-off clause
4. › Clause requiring payments 'without set-off or counterclaim'
5. › Whether clause excludes equitable set-off
6. › Whether clause prevents guarantor from reducing claim by overpayment
1. Guarantee
2. › Guarantor's defences
3. › Set-off and counterclaim
4. › Whether guarantor bound by no set-off clause in principal agreement
5. › Whether guarantor entitled to reduce liability by amount of borrower's overpayment
1. Practice and Procedure
2. › Summary judgment
3. › Whether arguable defence
4. › Whether primary judge erred in construing contract on summary judgment application when same clause raised triable issue on another aspect

Quick Take

A clause requiring payments to be made 'without set-off or counterclaim' unambiguously excludes all forms of set-off, including equitable set-off, and prevents a guarantor from reducing the creditor's claim by amounts the borrower may have overpaid. A borrower's remedy for mistaken payments must be pursued in separate proceedings. The question whether a guarantor has an independent right to claim restitution of the borrower's overpayment from the creditor was left open.