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Data Transfer Services Pty Ltd v White

Data Transfer Services Pty Ltd v White

Case [2023] NSWCA 16 16 February 2023

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Data Transfer Services Pty Ltd v White [2023] NSWCA 16
Hearing dates: 9 February 2023
Decision date: 16 February 2023
Before: Ward P; Leeming JA; Griffiths AJA
Decision:
Appeal dismissed, with costs.

Catchwords:
ESTOPPEL – estoppel by deed – Deed of Loan and Guarantee acknowledged receipt from lender of $2,000,000 and borrower’s indebtedness – where no amount paid – whether mere fact of non-payment precluded lender from relying on estoppel – where evidence established sale of business by lender’s companies to borrower had formerly involved vendor finance and was replaced by separate loan agreement from lender – where no case for rectification or rescission was made out – lender entitled to rely on estoppel by deed

Legislation Cited:
Common Law Procedure Act 1899 (NSW), s 95
Corporations Act 2001 (Cth), s 182
Judicature Act 1873 (UK)
Supreme Court Act 1970 (NSW), ss 57, 59, 61

Cases Cited:
BTI 2014 LLC v Sequana SA [2022] UKSC 25; [2022] 3 WLR 709
Compagnie FrancaiseD'Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings Ltd [2013] NSWCA 418
Cousens v Grayridge Pty Ltd [2000] VSCA 96
Doe d Hiscocks v Hiscocks (1830) 5 M & W 364; 151 ER 154
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Goodman v Gallant [1986] Fam 106
Goodtitle d Edwards v Bailey (1777) 2 Cowp 597; 98 ER 1260
Greer v Kettle [1938] AC 156
Helmich and Taylor v Thorpe and Strathdee [1997] 3 NZLR 86
Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722
Pink v Lawrence (1978) 36 P & C R 98
White v Data Transfer Services Pty Ltd (No 2) [2022] NSWSC 963
Wilson v Wilson [1969] 1 WLR 1470

Category: Principal judgment
Parties: Data Transfer Services Pty Ltd (First Appellant)
Maher Mina (Second Appellant)
John Anthony White (Respondent)
Representation:
Counsel:
Mr R Marshall SC with M J Heath (Appellants)
Mr J S Emmett SC with M T Fernandes (Respondent)
Solicitors:
Matthews Folbigg Pty Ltd (Appellants)
Fortis Law Group (Respondent)

File Number(s): 2022/00223082
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2022] NSWSC 963

Date of Decision:

20 July 2022

Before:

Williams J

File Number(s):

2020/48713

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr John Anthony White as lender, Data Transfer Services Pty Ltd (“DTS”) as borrower and Mr Maher Mina as guarantor entered into a Deed of Loan and Guarantee on 22 August 2014. Clause 2.1 provided that DTS had received $2 million from Mr White and was indebted to him for that amount. DTS failed to make any monthly instalments in breach of the Deed, and Mr White sued on the…

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 Data Transfer Services Pty Ltd v White

Details

AGLC: Data Transfer Services Pty Ltd v White [2023] NSWCA 16
Case: [2023] NSWCA 16
Decision Date: 16 February 2023

CaseChat Overview and Summary

Data Transfer Services Pty Ltd (the borrower) appealed a decision of the primary judge concerning a Deed of Loan and Guarantee. The lender, White, sought to rely on the deed to recover a sum of $2,000,000, which the deed acknowledged had been advanced to the borrower. The borrower contended that no funds were actually paid, and therefore the lender was precluded from relying on the deed. The appeal was heard by Ward P, Leeming JA, and Griffiths AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the lender was entitled to rely on the principle of estoppel by deed, notwithstanding that the acknowledged receipt of $2,000,000 in the deed was factually incorrect, as no funds had been advanced. The court also considered whether the borrower could resist the lender's claim on the basis of the non-payment, and whether the circumstances warranted rectification or rescission of the deed.

The Court of Appeal held that the lender was entitled to rely on estoppel by deed. The court reasoned that the deed contained a clear and unambiguous acknowledgement of receipt of the loan funds. While the borrower argued that the non-payment meant the lender could not rely on the deed, the court found that the evidence established a prior transaction involving vendor finance for the sale of a business, which was subsequently replaced by the separate loan agreement. Crucially, no case for rectification or rescission of the deed had been made out by the borrower. Therefore, the borrower was estopped from denying the truth of the recitals in the deed, including the acknowledgement of the loan.

The appeal was dismissed, and the borrower was ordered to pay the lender's costs.

Orders

Orders of the court

Appeal dismissed, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Data Transfer Services Pty Ltd v White [2023] NSWCA 16

Most Recent Citation

In the matter of T Pty Ltd (subject to Deed of Company Arrangement) [2025] NSWSC 1312

Cases citing this decision · 2 of 2 shown

In the matter of T Pty Ltd (subject to Deed of Company Arrangement)
[2025] NSWSC 1312 Para 94

…12] WASCA 157 per Lee AJA at [1092]–[1093]), per Drummond AJA at [2042]–[2095]; Data Transfer Services Pty Ltd v White (2023) 111 NSWLR 25; [2023] NSWCA 16 at [42]. I also recognise that the point at which that obligation arises has been controversial in recent case law: BTI 2014 LLC v Sequana SA [2022] 3 WLR 709;…
Kimberley Developments Pty Ltd v Bale
[2023] NSWCA 25 Para 54

…point was made in Fischer v Nemeske Pty Ltd (2016) 257 CLR 615; [2016] HCA 11 at [87] and [193], in Data Transfer Services Pty Ltd v White [2023] NSWCA 16 at [29]-[37], and by K Handley, “Reinventing Estoppel in the Privy Council” (2014) 130 LQR 370 at 371. There are statements in Prime Sight Ltd v Lavarello [201…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

BTI 2014 LLC v Sequana SA
[2022] UKSC 25 Para 42

…company in the way described in Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 and more recently in BTI 2014 LLC v Sequana SA [2022] UKSC 25; [2022] 3 WLR 709 so as to require the director to have regard to the interests of creditors when procuring a reduction in the price. Reliance was placed on…
White v Data Transfer Services Pty Ltd (No 2)
[2022] NSWSC 963 Para 1

…the respondent Mr John Anthony White, following a three day trial in the Commercial List of this Court: White v Data Transfer Services Pty Ltd (No 2) [2022] NSWSC 963. The first appellant was differently named at the time, but it is convenient to refer to it as “DTS”.…
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd
[2017] HCA 12

…a Holdings Ltd [2013] NSWCA 418 Cousens v Grayridge Pty Ltd [2000] VSCA 96 Doe d Hiscocks v Hiscocks (1830) 5 M & W 364; 151 ER 154 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Goodman v Gallant [1986] Fam 106 Goodtitle d Edwar…
Simic v New South Wales Land and Housing Corporation
[2016] HCA 47

…eed to conform to the parties’ true agreement. Thus, rectification in equity is not available: Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [103] (Gageler, Nettle and Gordon JJ). Nor does the fiction, without more, provide a basis for rescission of the deed. Thus, the fact…
Electricity Generation Corporation v Woodside Energy Ltd
[2014] HCA 7 Para 47

…nly by reference to the four corners of the 13 page document, relying on Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7. To the extent that this submission amounted to an overturning of more recent decisions upholding resort to surrounding circumstances or context in t…
Compagnie Francaise D'Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings Ltd
[2013] NSWCA 418 Para 34

…Sackville AJA agreeing) said in Compagnie Francaise D'Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings Ltd [2013] NSWCA 418 at [96] that:…
Cousens v Grayridge Pty Ltd
[2000] VSCA 96 Para 22

…approaches at common law and in equity to receipt clauses contained in a deed in Greer v Kettle [1938] AC 156 at 171-172, Cousens v Grayridge Pty Ltd [2000] VSCA 96 at [57]-[58] and Helmich and Taylor v Thorpe and Strathdee [1997] 3 NZLR 86. In the latter case it was said that the “exception” pursuant to which eq…
[1938] AC 156
[1938] AC 156 Para 22

…ess to Mr White. Her Honour referred to the different approaches at common law and in equity to receipt clauses contained in a deed in Greer v Kettle [1938] AC 156 at 171-172, Cousens v Grayridge Pty Ltd [2000] VSCA 96 at [57]-[58] and Helmich and Taylor v Thorpe and Strathdee [1997] 3 NZLR 86. In the latter cas…
[1997] 3 NZLR 86
[1997] 3 NZLR 86 Para 22

…eed in Greer v Kettle [1938] AC 156 at 171-172, Cousens v Grayridge Pty Ltd [2000] VSCA 96 at [57]-[58] and Helmich and Taylor v Thorpe and Strathdee [1997] 3 NZLR 86. In the latter case it was said that the “exception” pursuant to which equity permits a party to challenge an acknowledgement in a deed:…
Goodtitle d Edwards v Bailey
(1777) 2 Cowp 597 Para 29

…el binding the parties at common law. Lord Mansfield said, “No man shall be allowed to dispute his own solemn deed”: Goodtitle d Edwards v Bailey (1777) 2 Cowp 597 at 600-601; 98 ER 1260. The doctrine originally applied to operative provisions and was extended to recitals, as Lord Maugham explained in Greer v Kettle…
Goodtitle d Edwards v Bailey
98 ER 1260 Para 29

…on law. Lord Mansfield said, “No man shall be allowed to dispute his own solemn deed”: Goodtitle d Edwards v Bailey (1777) 2 Cowp 597 at 600-601; 98 ER 1260. The doctrine originally applied to operative provisions and was extended to recitals, as Lord Maugham explained in Greer v Kettle at 168-169. The party…
[1969] 1 WLR 1470
[1969] 1 WLR 1470 Para 35

…lief. That is the force of the qualification in the statement of principle by Ward JA reproduced above. That is why Buckley J said in Wilson v Wilson [1969] 1 WLR 1470 at 1474 that the deed must be “rectifiable”. That is why Buckley LJ said with the agreement of Everleigh LJ and Sir John Pennycuick in Pink v Lawrenc…
[2022] 3 WLR 709
[2022] 3 WLR 709 Para 42

…way described in Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 and more recently in BTI 2014 LLC v Sequana SA [2022] UKSC 25; [2022] 3 WLR 709 so as to require the director to have regard to the interests of creditors when procuring a reduction in the price. Reliance was placed on the fact that some…
Doe d Hiscocks v Hiscocks
151 ER 154 Para 49

…essary evidence, to enable us to understand the meaning and application of his words”: Doe d Hiscocks v Hiscocks (1830) 5 M & W 364 at 368; 151 ER 154 at 156. The evidence which demonstrated that the parties had been in negotiations to buy Mr White’s companies’ business, and had when the Deed was executed agr…
[1971] NZLR 58
[1971] NZLR 58

…say, common mistake - Brooke v Haymes (1868) LR 6 Eq 25; Greer v Kettle [1938] AC 156,171; Wilson v Wilson [1969] 1 WLR 1470; McCathie v McCathie [1971] NZLR 58 CA, 70-1; or otherwise seeking some form of equitable relief).…
[1963] 1 WLR 1470
[1963] 1 WLR 1470

…In these circumstances the overwhelming preponderance of authority, including the three decisions of this court in Wilson v Wilson [1963] 1 WLR 1470, Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 and Pink v Lawrence (1977) 36 P & CR 98, in our judgment both entitle and oblige us to hold that, in the absence of…
[1974] 1 WLR 1528
[1974] 1 WLR 1528

…elming preponderance of authority, including the three decisions of this court in Wilson v Wilson [1963] 1 WLR 1470, Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 and Pink v Lawrence (1977) 36 P & CR 98, in our judgment both entitle and oblige us to hold that, in the absence of any claim for rectification or re…

Legislation cited in this decision · 4

Supreme Court Act 1970 (NSW)
57, 59, 61 4 mentions (from Para 31)
Common Law Procedure Act 1899 (NSW)
95 2 mentions (from Para 31)
Corporations Act 2001 (Cth)
182 2 mentions (from Para 42)
Judicature Act 1873 (UK)
1 mention (from Para 31)

Medium Neutral Citation:	Data Transfer Services Pty Ltd v White [2023] NSWCA 16
Hearing dates:	9 February 2023
Decision date:	16 February 2023
Before:	Ward P; Leeming JA; Griffiths AJA
Decision:	Appeal dismissed, with costs.
Catchwords:	ESTOPPEL – estoppel by deed – Deed of Loan and Guarantee acknowledged receipt from lender of $2,000,000 and borrower’s indebtedness – where no amount paid – whether mere fact of non-payment precluded lender from relying on estoppel – where evidence established sale of business by lender’s companies to borrower had formerly involved vendor finance and was replaced by separate loan agreement from lender – where no case for rectification or rescission was made out – lender entitled to rely on estoppel by deed
Legislation Cited:	Common Law Procedure Act 1899 (NSW), s 95 Corporations Act 2001 (Cth), s 182 Judicature Act 1873 (UK) Supreme Court Act 1970 (NSW), ss 57, 59, 61
Cases Cited:	BTI 2014 LLC v Sequana SA [2022] UKSC 25; [2022] 3 WLR 709 Compagnie FrancaiseD'Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings Ltd [2013] NSWCA 418 Cousens v Grayridge Pty Ltd [2000] VSCA 96 Doe d Hiscocks v Hiscocks (1830) 5 M & W 364; 151 ER 154 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Goodman v Gallant [1986] Fam 106 Goodtitle d Edwards v Bailey (1777) 2 Cowp 597; 98 ER 1260 Greer v Kettle [1938] AC 156 Helmich and Taylor v Thorpe and Strathdee [1997] 3 NZLR 86 Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 Pink v Lawrence (1978) 36 P & C R 98 White v Data Transfer Services Pty Ltd (No 2) [2022] NSWSC 963 Wilson v Wilson [1969] 1 WLR 1470
Category:	Principal judgment
Parties:	Data Transfer Services Pty Ltd (First Appellant) Maher Mina (Second Appellant) John Anthony White (Respondent)
Representation:	Counsel: Mr R Marshall SC with M J Heath (Appellants) Mr J S Emmett SC with M T Fernandes (Respondent) Solicitors: Matthews Folbigg Pty Ltd (Appellants) Fortis Law Group (Respondent)
File Number(s):	2022/00223082
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Commercial List Citation: [2022] NSWSC 963 Date of Decision: 20 July 2022 Before: Williams J File Number(s): 2020/48713