Srinivas Pty Ltd v Vansan Construction Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2023 05674

BETWEEN:

SRINIVAS PTY LTD (ACN 605 489 969) & ANOR (according to the attached Schedule)	Plaintiffs
and
VANSAN CONSTRUCTION PTY LTD (ACN 104 934 732) & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 and 7 May 2025, last written submissions received 21 May 2025
DATE OF JUDGMENT:	27 June 2025
CASE MAY BE CITED AS:	Srinivas Pty Ltd v Vansan Construction Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 381

---

CONTRACTS – Plaintiffs seek to enforce loan agreements and guarantees where no repayments had been made – Non-fulfilment of condition precedent – Whether condition is a condition precedent to formation or instead to performance – Waiver – Whether requirement for waiver to be in writing can itself be waived – Non-compliance with some procedural requirements – Whether payments made by plaintiffs were made pursuant to the loan agreements – Whether borrowers were in default at time plaintiffs sought repayment – If payments not made pursuant to loan agreements, whether restitution claim arises – Commonwealth v Verwayen (1990) 170 CLR 394 – Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 – Canberra Advance Bank Ltd v Benny (1991) 115 ALR 207 – Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Lubofsky of counsel	MST Lawyers
For the Defendants	Mr S Prendergast of counsel	Vincent J Ryan

Contents

A.. Introduction and overview

A.1         The parties

A.2         Overview of this case

A.3         Background to the dealings between the parties

A.4         The Loan Agreements

A.4.1        Entry into the First Loan Agreement and other transaction documents

A.4.2        Entry into the Second Agreement

A.4.3        Entry into the Third Loan Agreement

A.4.4        Key terms of the Loan Agreements

A.4.5        Key terms of the Guarantee

A.5         Subsequent developments

B.. Pleadings

C.. Conduct of the trial

D.. Issues for consideration

E... Does the non-fulfilment of the conditions precedent or the lack of written waiver thereof have the effect that the Payments were not made pursuant to the Loan Agreements?

E.1          The plaintiffs’ submissions

E.1.1        Waiver

E.1.2        The nature of this condition precedent – it is limited in effect

E.1.3        Estoppel by convention

E.2          The defendants’ submissions

E.2.1        Waiver

E.2.2        The nature of this condition precedent – its non-fulfilment means that the parties are not bound by the Loan Agreements

E.2.3        Estoppel by convention

E.3          The plaintiffs’ submissions in reply

E.3.1        Waiver

E.3.2        Nature of the condition precedent and the effect of its non-fulfilment

E.4          The defendants’ submissions in response to the plaintiffs’ reply

E.5          Analysis and consideration

E.5.1        The nature of the condition precedent

E.5.2        Waiver

E.5.3        Estoppel

F... Does the lack of written requests from the defendants for the Advances and/or the lack of written confirmation from the plaintiffs of the fact of the Advances have the effect…