Hubbard v Cheah

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hubbard v Cheah [2011] NSWCA 222

Hearing dates:

15 July 2011

Decision date:

01 August 2011

Before:

Beazley JA at 1; Giles JA at 2; Hodgson JA at 8

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - Interpretation - Provision of finance for development - Whether on true construction of contract principal repayable.

PROCEDURE - Pleading - Need to avoid surprise.

Legislation Cited:

Civil Procedure Act 2005 s 56
Uniform Civil Procedure Rules rr 14.11, 14.14

Category:

Principal judgment

Parties:

appellant: Peter James HUBBARD
first Respondent: Shaun Yin Thuan CHEAH
second respondent: HPL DEVELOPMENTS PTY LIMITED
third respondent: Warwick James LINDSAY

Representation:

appellant: M R Hall
first respondent: G Carolan
second and third respondent: No appearance
appellant: Patey & Murphy
first respondent: Hunter Family Law Centre
second and third respondent: No appearance

File Number(s):

2010/364894

 Decision under appeal 

Citation:

Cheah v HPL Developments Pty Limited & Ors [2010] NSWDC 221

Date of Decision:

2010-10-06 00:00:00

Before:

Sidis DCJ

File Number(s):

263 of 2008

Judgment

1. BEAZLEY JA: I agree with the reasons and orders proposed by Hodgson JA. I also agree with the additional comments of Giles JA.

1. GILES JA: The facts are fully set out in the reasons of Hodgson JA, which I have had the advantage of reading in draft.

1. I agree with his Honour that categorisation of Mr Cheah's funding as an investment or a loan is not helpful, and that what has to be determined is the effect of the provisions of the agreement. Clause 2(1)(e) is a complete basis for liability of HPL, and for the guarantors to be liable pay $460,000 to Mr Cheah, if the principal repayment to La Trobe had fallen due.

1. Clause 2(1)(e) was pleaded as the basis for liability, although it was not specifically pleaded that the principal repayment to La Trobe had fallen due. Whether the principal repayment had fallen due was not prominent in the proceedings, which in this respect became preoccupied with investment or loan, but was an issue for determination on such evidence as was directed to it.

1. The La Trobe loan was for one year from no later than 21 June 2005. As explained by Hodgson JA, it is apparent from the letter of 29 June 2006 that Mr Cheah had by that date not extended it. Thus the principal repayment had fallen due. Mr Cheah appears thereafter to have extended the La Trobe loan so that in January-February 2008 it was "becoming due and payable". But the second proposal in the letter of 29 June 2006…