Bega v Lauvan Pty Ltd

[2019] NSWCA 36

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bega v Lauvan Pty Ltd [2019] NSWCA 36
Hearing dates:	5 October 2018
Decision date:	28 February 2019
Before:	Meagher JA at [1]; Leeming JA at [2]; White JA at [59]
Decision:	Appeal dismissed with costs.
Catchwords:	AGENCY – actual authority – ostensible authority – facility agreement – no drawdown notice given – whether borrower’s husband had actual authority to request drawdown – whether husband’s associate had ostensible authority to request advance – whether written authorisation required   CONTRACT – condition precedent – appellant entered into facility agreement with respondents – agreement required borrower to provide drawdown notice to lenders – no drawdown notice given – whether obligation to provide drawdown notice capable of being waived by lenders
Legislation Cited:	Nil
Cases Cited:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693; [1904] HCA 35 General Legal Council ex parte Whitter v Frankson (Jamaica) [2006] UKPC 42; [2006] 1 WLR 2803 Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430 Lauvan Pty Ltd & Anor v Bega & Ors [2018] NSWSC 154 O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1; [1983] HCA 47 The Queen v The Justices of Kent (1873) LR 8 QB 305
Texts Cited:	P Watts, “Some Aspects of the Intersection of the Law of Agency with the Law of Trusts” in P S Davies and J Penner, Equity, Trusts and Commerce (Bloomsbury Publishing, 2017) 29
Category:	Principal judgment
Parties:	Helen Bega (Appellant) Lauvan Pty Ltd (First Respondent) Mittabell Pty Ltd (Second Respondent) Aidan Bega (Third Respondent, submitting) AB Veritas Pty Ltd (Fourth Respondent, submitting)
Representation:	Counsel: A G Bell SC, A Ogborne (Appellant) G A Sirtes SC, A Avery-Williams (First and Second Respondents)   Solicitors: Aubrey Crawley & Co (Appellant) Woolf Associates (First and Second Respondents)
File Number(s):	CA 2018/00088868
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 154 Date of Decision: 22 February 2018 Before: Gleeson JA File Number(s): 2015/362975

Judgment

1. MEAGHER JA: I agree with Leeming JA.

2. LEEMING JA: The primary judge conducted a trial over 8 days, involving more parties and many more issues than are presented on Mrs Bega’s appeal. There is thus no occasion to summarise most of his Honour’s reasons for judgment.

3. It suffices for present purposes to note that the respondent lenders, Lauvan Pty Ltd and Mittabell Pty Ltd, entered into a facility agreement with the appellant Mrs Helen Bega as borrower. Mrs Bega gave security over a property owned by her at Denham Court, near Campbelltown. The facility agreement recited that Mrs Bega had requested the facility for the purpose of “assisting with short term on lending to family members for proposed commercial investment opportunities in the sum of $1,000,000”. The salient terms are summarised below, including the…