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Barrington Winstanley Group Pty Ltd v Edmonds

Barrington Winstanley Group Pty Ltd v Edmonds

Case [2022] NSWSC 531 4 May 2022

Contract Formation

Breach of Contract

Implied Terms

Unconscionable Conduct

Mortgages & Security Interests

Adverse Possession

Contract Law

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531
Hearing dates: 19-20 April 2022
Date of orders: 4 May 2022
Decision date: 04 May 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff entitled to a monetary judgment, in an amount to be calculated, against the first and second defendants.

Catchwords:
CONTRACTS – deeds – where third defendant retained plaintiff finance broker in relation to proposed refinancing transaction – where first and second defendants guaranteed third defendant’s obligations under agreement – dispute as to whether a service fee became payable under agreement – where defendants subsequently executed a deed acknowledging plaintiff’s right to service fee under agreement – where deed contains undertaking to pay service fee plus interest – where second defendant claimed to have executed deed due to abuse and intimidation by plaintiff – held that execution of deed not procured by unfair or illegitimate pressure – held that first and second defendants obliged to pay service fee plus interest in accordance with deed
MORTGAGES AND SECURITIES – charge – where charge expressed to secure moneys that become due and payable under agreement – where service fee did not become due and payable under agreement – where subsequent deed acknowledges that service fee is payable under agreement and refers to charging clause in agreement as valid – whether defendants precluded by estoppel by deed from asserting that there is no amount secured by the charge – where enforcement of charge is not an action on deed to enforce rights arising under deed – held no estoppel by deed precluded defendants from asserting that no moneys became due and payable under the agreement such as to be secured by the charge – plaintiff held not to be entitled to enforce charge to recover amount due under deed

Legislation Cited:
Corporations Act 2001 (Cth), s 127

Cases Cited:
Australia and New Zealand Banking Group Ltd v Bragg (No 3) [2017] NSWSC 208
Burkett v Bendigo and Adelaide Bank Ltd (No 2) (2018) 133 ACSR 411; [2018] VSC 723
Minassian v Minassian [2010] NSWSC 708
Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337
Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344
Re Quality Blended Liquor Pty Ltd [2015] 2 Qd R 381; [2014] QSC 234
Segboer v AJ Richardson Properties Pty Ltd (2012) 16 BPR 31,235; [2012] NSWCA 253

Category: Principal judgment
Parties: Barrington Winstanley Group Pty Ltd (Plaintiff)
Sandra Henri Edmonds (First Defendant)
David James Edmonds (Second Defendant)
DSJSE Pty Ltd (Third Defendant)
NWC Finance Letter of Offer Pty Ltd (Fourth Defendant)
Jason Mark Hulbert (Fifth Defendant)
Representation:
Counsel:
Mr M R Pesman SC (Plaintiff)
Solicitors:
Ark Legal (Plaintiff)
ERA Legal (Fourth Defendant)

File Number(s): 2021/112414
Publication restriction: None

Judgment

Introduction

By a Statement of Claim filed on 22 April 2021, the plaintiff (“BWG”) seeks a monetary judgment against the first and second defendants (Mrs and Mr Edmonds) pursuant to a Deed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrington Winstanley Group Pty Ltd v Edmonds

Details

AGLC: Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531
Case: [2022] NSWSC 531
Decision Date: 04 May 2022

CaseChat Overview and Summary

Barrington Winstanley Group Pty Ltd, a finance broker, was retained by the third defendant in relation to a proposed refinancing transaction. The first and second defendants executed guarantees of the third defendant's obligations under the agreement. A dispute arose over whether a service fee became payable under the agreement. Subsequently, the defendants executed a deed acknowledging the plaintiff's right to the service fee, which contained an undertaking to pay the service fee plus interest. The second defendant later claimed that the deed was executed due to abuse and intimidation by the plaintiff. The first and second defendants denied liability to pay the service fee plus interest. The court was required to determine whether the execution of the deed was procured by unfair or illegitimate pressure and whether the defendants were precluded by estoppel by deed from asserting that there was no amount secured by the charge.

The court held that the execution of the deed was not procured by unfair or illegitimate pressure. The court found that the second defendant was a sophisticated businessman and was not coerced into executing the deed. The court also held that the defendants were not precluded by estoppel by deed from asserting that there was no amount secured by the charge. The court found that enforcement of the charge was not an action on the deed to enforce rights arising under the deed. Therefore, the defendants were not precluded from asserting that no moneys became due and payable under the agreement such as to be secured by the charge. The court held that the plaintiff was not entitled to enforce the charge to recover the amount due under the deed.

The court held that the first and second defendants were obliged to pay the service fee plus interest in accordance with the deed. The court found that the defendants were bound by the terms of the deed, which acknowledged the plaintiff's right to the service fee and contained an undertaking to pay the service fee plus interest. The court held that the defendants were not entitled to rely on the fact that the service fee did not become due and payable under the agreement, as they had acknowledged the plaintiff's right to the service fee in the deed. The court ordered the first and second defendants to pay the service fee plus interest to the plaintiff in accordance with the terms of the deed.

Orders