Sean Kevin Memery v Trilogy Funds Management Limited (ACN 080 383 679)

[2013] HCASL 35

SEAN KEVIN MEMERY

v

TRILOGY FUNDS MANAGEMENT LIMITED (ACN 080 383 679)

[2013] HCASL 35
B39/2012

1. The District Court of Queensland entered judgment for the respondent (a financier) against the applicant (a property developer) in the sum of $43,181.66 (together with interest) found to be owing by the respondent to the applicant as an "application fee" under a written loan facility agreement entered into between the applicant and the respondent in August 2009.

2. The Court of Appeal of the Supreme Court of Queensland (McMurdo P, Fraser and White JJA) unanimously refused the applicant leave to appeal on the basis that the proposed appeal would not succeed.  The Court of Appeal found that the loan facility agreement was not conditional on monies being advanced and that the application fee was supported by consideration.  The Court of Appeal found that the respondent did not retain such a wide discretion in relation to whether to advance monies that no contract was formed.  In this latter respect, the Court of Appeal distinguished the terms of the loan facility agreement from the terms of the agreement considered by the Court of Appeal of the Supreme Court of Victoria in Gippsreal Ltd v Registrar of Titles (2007) 20 VR 157.

3. The applicant now seeks special leave to appeal to this Court.  The application seeks to canvass unremarkable conclusions drawn by the Court of Appeal from the terms of the loan facility agreement.  Contrary to the suggestion made in the applicant's summary of argument, the decision of the Court of Appeal is not in conflict with the Court of Appeal of Victoria in Gippsreal Ltd v Registrar of Titles.  No question sufficient to warrant the grant of special leave is raised by the application.

4. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
13 March 2013 S.J. Gageler