KWS CAPITAL PTY LTD -v- LOVE [2015] WASCA 237

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 237
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:129/2014	Heard:	6 AUGUST 2015
Coram:	McLURE P MURPHY JA BEECH J	Delivered:	24/11/15
No of pages:	36	Judgment Part:	1 of 1
Result:	Appeal allowed Orders of trial judge set aside Judgment for plaintiff
Category:	B
PDF Version

Parties:	KWS CAPITAL PTY LTD ROSS MAITLAND LOVE
Catchwords:	Mortgage broker Agency Agent of borrower Loan not ultimately advanced Whether any loan was 'approved' Proper construction of mandate agreement between borrower and broker Whether broker had an entitlement to a fee on a proper construction of the mandate document
Legislation:	Personal Property Securities Act 2009 (Cth)
Case References:	Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Baltic Shipping Co v Dillon (The Mikhail Lermontov) [1993] HCA 4; (1993) 176 CLR 344 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 KWS Capital Pty Ltd v Love [2014] WADC 119 Love v Brien [2012] WASC 457 Masters v Cameron (1954) 91 CLR 353 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 Nelson v Moorcraft [2014] WASCA 212 Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KWS CAPITAL PTY LTD -v- LOVE [2015] WASCA 237 CORAM : McLURE P

MURPHY JA

BEECH J

HEARD : 6 AUGUST 2015 DELIVERED : 24 NOVEMBER 2015 FILE NO/S : CACV 129 of 2014 BETWEEN : KWS CAPITAL PTY LTD

Appellant

AND

ROSS MAITLAND LOVE

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

Citation : KWS CAPITAL LTD -v- LOVE [2014] WADC 119

File No : CIV 3525 of 2013

Catchwords:

Mortgage broker - Agency - Agent of borrower - Loan not ultimately advanced - Whether any loan was 'approved' - Proper construction of mandate agreement between borrower and broker - Whether broker had an entitlement to a fee on a proper construction of the mandate document

Legislation:

Personal Property Securities Act 2009 (Cth)

Result:

Appeal allowed

Orders of trial judge set aside
Judgment for plaintiff

Category: B

Representation:

Counsel:

Appellant : Mr B Roberts SC

Respondent : Mr A Metaxas

Solicitors:

Appellant : Culshaw Miller

Respondent : Metaxas & Hager

Case(s) referred to in judgment(s):

Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Baltic Shipping Co v Dillon (The Mikhail Lermontov) [1993] HCA 4; (1993) 176 CLR 344
Codelfa Construction…

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.

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Details

Case: [2015] WASCA 237
Decision Date: 24 NOVEMBER 2015

CaseChat Overview and Summary

The appeal before the Court was brought by KWS Capital Pty Ltd against Love, a mortgage broker. KWS Capital sought to recover fees that it claimed were due under a mandate agreement with Love. The agreement was executed when Love was acting on behalf of a borrower to secure a loan from KWS Capital. The loan was not ultimately advanced, and KWS Capital disputed whether any loan was approved, thereby questioning whether Love was entitled to a fee. The dispute centred on the proper construction of the mandate agreement and whether Love, as the mortgage broker, was entitled to a fee regardless of whether a loan was ultimately advanced.

The legal issues the court had to address included whether the mandate agreement was clear in its terms regarding the broker's entitlement to a fee when a loan was not advanced. The court examined whether the agreement constituted an entitlement to a fee for services rendered, regardless of the outcome of the loan application, or if the fee was contingent upon the actual approval and advancement of a loan. Additionally, the court needed to determine if the broker's role as an agent of the borrower influenced the interpretation of the mandate agreement.

The court found that the mandate agreement did not explicitly state that the broker would receive a fee if the loan was not approved or advanced. The court held that the broker's entitlement to a fee was contingent on the actual approval and advancement of the loan. Given that no loan was ultimately advanced, the court concluded that KWS Capital was not liable to pay the broker's fees. The court set aside the orders of the trial judge and allowed the appeal, ruling in favour of KWS Capital.

Orders

Orders of the court

Appeal allowed

Orders of trial judge set aside

Judgment for plaintiff

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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