Starwhist Pty Ltd v Tonge - [2017] NSWSC 963

Supreme Court

New South Wales

Medium Neutral Citation: Starwhist Pty Ltd v Tonge [2017] NSWSC 963
Hearing dates: 7 July 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
(1)   Leave to the Defendant to file an amended defence consistent with these reasons but in particular:

(a)   Omitting paragraph 9 from the words “except as to the proper” to the end of the paragraph;

(b)   By pleading appropriately to paragraph 29 of the Statement of Claim;

(c)   By omitting paragraphs 21 to 31 of the proposed defence;

(d)   By omitting paragraphs 3 to 13 of the proposed cross-claim;

(e)   In relation to paragraphs 34 to 37 of the proposed defence and paragraphs 16 to 19 of the proposed cross-claim, by pleading reliance only on an estoppel arising from the letters of 28 and 31 October 2016;

(f)   By removing in paragraph 40 of the proposed defence and paragraph 22 of the proposed cross-claim the words “(which were in fact $1.930 million rather than $2 million)”;

(g) By re-pleading the matters in paragraph 42 of the proposed defence and paragraph 24 of the proposed cross-claim to confine the Contracts Review Act claim to one based upon the interest rates charged including, if desired, the rates in the light of the application fee;

(h)   By omitting paragraph (e) from paragraph 42 of the proposed defence and paragraph 24 of the proposed cross-claim.

(2)   The Plaintiff’s Notice of Motion filed 20 June 2017 is dismissed.
(3)   The Defendant’s Notice of Motion filed 13 June 2017 is dismissed with no order as to costs.
Catchwords:
PRACTICE AND PROCEDURE – claim for possession of land – application for summary judgment – application for leave to file amended defence and cross-claim – whether proposed defence manifestly hopeless – leave granted in part

CONTRACTS – defendant seeks specific performance of deed – agreement reached at mediation – parties to be immediately bound but enter deed at later time - whether execution of deed a condition precedent to settlement of dispute – construction of agreement - Contracts Review Act defence pleaded – mortgage with no underlying loan agreement - relationship between ss 7 and 19 Contracts Review Act
ESTOPPEL – promissory estoppel - request by mortgagor to extend time for payment – mortgagee’s solicitor says he will obtain instructions – no further advice regarding request – time for settlement passes – whether arguable case of promissory estoppel
Legislation Cited: Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW)
Farm Debt Mediation Act 1994 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: A W Ellis Engineering Pty Limited and Ors v Malago Pty Ltd and Ors [2012] NSWSC 55
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073
Bank of Western Australia Limited v Maia Primanzon; Bank of Western Australia Limited v Violetta Primanzon and Alexandre Pachkovski [2010] NSWSC 862
Baulkham Hills Private…

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.

Keep reading for free

Create a free CaseChat account to read Starwhist Pty Ltd v Tonge and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 963
Decision Date: 21 July 2017

CaseChat Overview and Summary

Starwhist Pty Ltd initiated proceedings against Tonge in the Federal Circuit Court, seeking possession of land and related relief. Tonge responded with a defence and a cross-claim for specific performance of a deed related to the land. The crux of the dispute lay in the interpretation of a mediation settlement agreement and the subsequent execution of a deed, as well as the applicability of the Contracts Review Act. Additionally, Tonge raised a promissory estoppel defence, arguing that Starwhist's solicitor had promised to extend the settlement period.

The court was required to determine whether the proposed defence and cross-claim were manifestly hopeless, warranting a summary judgment against Tonge. Furthermore, the court needed to interpret the mediation agreement, particularly the condition of executing a deed, and assess whether the execution of the deed was a condition precedent to the settlement. Additionally, the court examined whether the mortgage in question was valid under the Contracts Review Act, particularly the relationship between sections 7 and 19 of the Act. Finally, the court had to consider whether Tonge had established a prima facie case of promissory estoppel based on the alleged promise made by Starwhist's solicitor.

The court found that the proposed defence and cross-claim were not manifestly hopeless, denying the application for summary judgment. The court concluded that the execution of the deed was not a condition precedent to the settlement, and thus, the deed could be executed at a later time. Regarding the Contracts Review Act, the court held that the mortgage was invalid due to the absence of an underlying loan agreement. However, the court allowed the promissory estoppel defence to proceed, finding it arguable based on the alleged promise made by Starwhist's solicitor. The court granted leave for Tonge to amend the defence and cross-claim to include the promissory estoppel defence.

The court ordered that leave be granted to Tonge to file an amended defence and cross-claim, incorporating the promissory estoppel defence. The application for summary judgment was dismissed.

Orders