Australia: Supreme Court summarily dismisses promissory note defences and claims


Mr and Mrs Evans alleged that they had repaid a debt owed by them to ANZ by way of a Promissory Note. Mr and Mrs Evans further alleged that as ANZ failed to accept the Promissory Note, ANZ owed them more than $7,000,000.

In determining this case (Australia and New Zealand Banking Group Ltd v Evans; Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742), the Supreme Court of New South Wales has provided further guidance on the issue of when it is appropriate to strike out or summarily dismiss a pleading and confirmed that a party cannot unilaterally impose a contract upon another party.

Kemp Strang acted on behalf of ANZ in this matter, which was heard by his Honour, Justice Garling on 21 September 2016 with judgment being delivered on 9 December 2016.

Key facts

ANZ provided various facilities to Glenevan Pty Ltd, a company of which Mr and Mrs Evans were the sole directors. The facilities were secured by guarantees given Mr and Mrs Evans and mortgages over three properties and two vehicles.

In February 2015, the company was placed into liquidation, resulting in an event of default occurring. ANZ subsequently issued demands to Mr and Mrs Evans and commenced proceedings for debt and possession of the properties and vehicles.

In response, Mr Evans delivered to ANZ a document that purported to be a Promissory Note. The purported Promissory Note detailed an amount approximately equal to the sum of the debt then owed by Mr Evans to ANZ and contained the following text:

"Redeemable on demand at 56 Winton Street, Tumbarumba New South Wales at 10.55 hours without; let, delay, hindrance or ado on the second day of October AD 2015".

The purported Promissory Note also included a statement to the effect that ANZ would be bound by the terms and conditions attached to the Promissory Note if it failed to return the Promissory Note within 3 days.

The terms and conditions attached to the purported Promissory Note included terms to the effect that ANZ would be in breach of the Promissory Note if it failed to return the Promissory Note and thereafter continued with its attempts to recover the debt owed to it by Mr and Mrs Evans. In relying upon these terms and conditions, Mr Evans sought orders against ANZ, including the following:

"Pursuant to the terms and conditions in the default and liability clause and notice of the six not negotiable contracts, [ANZ] is liable to [Mr and Mrs Evans] of an award for breach of contract for the total sum of $7,339,600 Australian as at 5 February 2016 for breach of the NOT NEGOTIABLE [Promissory Note]." (sic)

In February 2016, a defence was filed by Mr and Mrs Evans which admitted the existence of the agreements, the entry into mortgages, guarantees and demands and events of default. Mr and Mrs Evans asserted however that any liabilities owed to ANZ had been discharged as a result of the Promissory Note. Mr and Mrs Evans also cross claimed against ANZ, a number of its employees and Kemp Strang and commenced new proceedings against Esanda Finance Corporation Ltd.

ANZ sought to summarily dismiss or strike out the defence, cross claim and the proceedings commenced by Mr and Mrs Evans against Esanda Finance Corporation Ltd.

The Judgment

Garling J determined that the claims made against ANZ in relation to the Promissory Notes were "a nonsense". Garling J further described Mr Evans' efforts to bind ANZ to a unilateral contract as based upon an "irrational premise" being "that a person or party can unilaterally impose a contract upon one or more other parties by producing a five page written document, full of gibberish and legal nonsense, sending it to the other party or parties and then asserting that when the recipients ignore the document, they fall to be bound by its terms."

Notwithstanding the above, Garling J confirmed that summary dismissal should only occur in the "clearest of cases" as the effect of an order for summary dismissal denies a litigant a full hearing.

However, in light of the novel argument presented by Mr Evans, Garling J determined that Mr Evans' pleadings (in so far as they related to the Promissory Note) fell into a category of cases that can be determined on a summary basis as the arguments raised were "misconceived, nonsensical and a waste of the limited public resources invested in the judicial system". The balance of the pleadings were "wholly inadequate" in that they failed to properly plead a defence or cause of action.

As a result, the cross claim (in so far as it related to the Promissory Note) and the proceedings commenced by Mr Evans against Esanda Finance Corporation Limited were summarily dismissed. The defence was struck out with Mr and Mrs Evans being granted leave to file a notice of motion seeking leave to file an amended defence if they have a defence legally available to them. Mr and Mrs Evans are not permitted to replead the defences that were struck out.


The decision affirms that:

  1. A contract cannot be unilaterally imposed on a party without consideration and active consent (silence or passive consent is not sufficient).
  2. When commencing proceedings, there is to be a genuine dispute and a reasonable cause of action.
  3. All pleadings must adequately set out the cause of action or defence.
  4. The Court has ample power to summarily dismiss proceedings where those proceedings are vexatious or otherwise an abuse of process.

The takeaway is that in appropriate cases, it may be possible for a plaintiff to bring about a quick end to proceedings where defences and/or cross claims fail to raise any legally arguable defence/cause of action. However, each case must be considered on its merits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kemp Strang has received acknowledgements for the quality of our work in the most recent editions of Chambers & Partners, Best Lawyers and IFLR1000.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.