Incorporating Terms By Reference
Introduction
A recent decision1 has reaffirmed that, depending on the facts, terms and conditions of lending can be incorporated and apply to a bank/client relationship in circumstances where it is contended that those terms and conditions were never furnished to the borrower as part of a summary judgment application. Although the decision was given in the specific context of a bank/client relationship, it is of broader interest in terms of the incorporation of contractual terms and also sets out a useful overview of the summary judgment jurisdiction, which is typically used for liquidated damages (or debt) claims.
Background
The plaintiff was the national agency which took over non-performing loans from the state's banks. The defendant was involved in a property investment transaction for which money was loaned by one such bank. The loan was subsequently transferred to the plaintiff, which ultimately sought summary judgment against the defendant for over 1.25 million.
Summary judgment process
The court outlined that the summary judgment jurisdiction involves a decree being entered on foot of affidavits exhibiting contracts and scrutinising any replying affidavits to see whether there is a defence. This jurisdiction, it noted, is an exception to the constitutionally mandated requirement that courts should hear witnesses, allow cross-examination and listen to any submissions made at the end of such a process. However, summary judgment is a means whereby liquidated sums can be recovered in short form...
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