CIVIL PROCEDURE — default judgment — default in filing defence — leave to file defence after guillotine order — where principal admitted — where only defence was that default interest did not accrue without demand — whether bona fide defence on the merits
CONTRACTS — construction — loan facility agreements — default interest — whether default interest accrued only after lender’s demand
ESTOPPEL — estoppel by deed — recitals — where deed of extension recited loans repayable with interest on specified dates — whether borrower and guarantors estopped from denying loans fell due
Quick Take
1Where a deed of extension contains recitals stating that loans were repayable with interest on specified dates, and all parties acknowledge those recitals as true and accurate, the borrower and guarantors are estopped by deed from denying that the loans fell due on those dates, precluding a defence that default interest did not accrue absent a formal demand.
2A proposed defence that puts in issue only a sum falling within the Small Claims Division of the Local Court ($16,490.96 in a $1.29 million claim) may be refused leave on proportionality grounds under ss 56 and 60 of the Civil Procedure Act 2005 (NSW), even if the point were arguable.
3A contractual provision requiring repayment 'by demand by the Lender on … the Repayment Date' does not make the obligation to repay conditional on a separate demand where the loan agreement distinguishes between amounts payable on a specified date and amounts payable on demand.
