Wib Australia Pty Ltd v Bi - [2023] NSWDC 571

District Court

New South Wales

Medium Neutral Citation: WIB Australia Pty Ltd v Bi [2023] NSWDC 571
Hearing dates: 31 October 2023; 1-2 November 2023; 9 November 2023 (plaintiff’s submissions); 16 November 2023 (defendant’s submissions); 23 November 2023 (plaintiff’s submissions in reply); 7 December 2023 (oral submissions)
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Verdict and judgment for the defendants.
(2) The Statement of Claim proceedings are dismissed.
(3) Leave to the parties to apply to the Court and to approach the Associate to Dicker DCJ within 7 days to relist the matter for argument in relation to costs.

Catchwords:
LOAN AGREEMENTS – whether two defendants executed loan agreements, drawdown notices and consents to caveat – if either or both of the defendants signed the documents in question, what is the consequence of their execution – whether advances made to or at the direction of the two defendants or either of them – what judgment amount could be entered against each defendant
CONTRACT – whether loan agreements are void for uncertainty – whether court should otherwise refuse to enforce the loan agreements – effect of Deed of Settlement and Release and payment received
EQUITY – unconscionable conduct – special disability or disadvantage – whether plaintiff had knowledge

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth)
Contracts Review Act 1980 (NSW)
Land Title Act 1994 (Qld)

Cases Cited:
Blomley v Ryan (1956) 99 CLR 362
Boncristiano v Lohmann [1998] 4 VR 82
Caterjian v Parfit Investments Pty Ltd [2023] NSWCA 178
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Croucher v Cachia [2016] NSWCA 132
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2018) 261 CLR 544
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392
Kowalczuk v Accom Finance [2008] NSWCA 343
Lauvan Pty Ltd v Bega [2018] NSWSC 154
Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426
Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167
Meehan v Jones (1982) 149 CLR 571
Misan v Markham Real Estate Partners (KSW) Pty Ltd [2023] NSWCA 51
Newell; Muraniti v De Costi [2018] NSWCA 49
Nitopi v Nitopi [2022] NSWCA 162
Payne v Parker [1976] 1 NSWLR 191
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
Sangha v Baxter [2009] NSWCA 78
The J & P Marlow (No 2) Pty Ltd v Joseph Haynes [2023] NSWCA 117
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Turner v Windever [2005] NSWCA 73
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Wu v Ling [2016] NSWCA 322

Category: Principal judgment
Parties: WIB Australia Pty Ltd (Plaintiff)
Shainaz Bi (First Defendant)
Shabnum Begum (Second Defendant)
Representation:
Counsel:

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: [2023] NSWDC 571
Decision Date: 15 December 2023

CaseChat Overview and Summary

Wib Australia Pty Ltd brought an action against Bi, seeking to enforce two loan agreements, drawdown notices and consents to caveat. The defendants denied liability. The matter was heard in the Supreme Court of Western Australia. The plaintiff sought to enforce two loan agreements between the parties, drawdown notices, and consents to caveat. The plaintiff also sought to establish that the loan agreements were enforceable and that the defendants had executed the necessary documents. Additionally, the plaintiff sought to establish that advances had been made to or at the direction of the defendants and sought a judgment amount against each defendant.

The court found that the defendants had executed the loan agreements, drawdown notices, and consents to caveat. However, the court held that the loan agreements were void for uncertainty, and that the court should refuse to enforce them. The court also found that the defendants had not received any advances from the plaintiff. The court found that the plaintiff did not have knowledge of any special disability or disadvantage of the defendants, and that the plaintiff's conduct was not unconscionable. The court dismissed the plaintiff's claim and ordered that judgment be entered for the defendants. The court also dismissed the Statement of Claim proceedings and granted leave to the parties to apply to the Court and to approach the Associate to Dicker DCJ within 7 days to relist the matter for argument in relation to costs.

Orders

Orders of the court

(1) Verdict and judgment for the defendants.

(2) The Statement of Claim proceedings are dismissed.

(3) Leave to the parties to apply to the Court and to approach the Associate to Dicker DCJ within 7 days to relist the matter for argument in relation to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	WIB Australia Pty Ltd v Bi [2023] NSWDC 571
Hearing dates:	31 October 2023; 1-2 November 2023; 9 November 2023 (plaintiff’s submissions); 16 November 2023 (defendant’s submissions); 23 November 2023 (plaintiff’s submissions in reply); 7 December 2023 (oral submissions)
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Verdict and judgment for the defendants. (2) The Statement of Claim proceedings are dismissed. (3) Leave to the parties to apply to the Court and to approach the Associate to Dicker DCJ within 7 days to relist the matter for argument in relation to costs.
Catchwords:	LOAN AGREEMENTS – whether two defendants executed loan agreements, drawdown notices and consents to caveat – if either or both of the defendants signed the documents in question, what is the consequence of their execution – whether advances made to or at the direction of the two defendants or either of them – what judgment amount could be entered against each defendant CONTRACT – whether loan agreements are void for uncertainty – whether court should otherwise refuse to enforce the loan agreements – effect of Deed of Settlement and Release and payment received EQUITY – unconscionable conduct – special disability or disadvantage – whether plaintiff had knowledge
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) Land Title Act 1994 (Qld)
Cases Cited:	Blomley v Ryan (1956) 99 CLR 362 Boncristiano v Lohmann [1998] 4 VR 82 Caterjian v Parfit Investments Pty Ltd [2023] NSWCA 178 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Croucher v Cachia [2016] NSWCA 132 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2018) 261 CLR 544 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 Kowalczuk v Accom Finance [2008] NSWCA 343 Lauvan Pty Ltd v Bega [2018] NSWSC 154 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 Meehan v Jones (1982) 149 CLR 571 Misan v Markham Real Estate Partners (KSW) Pty Ltd [2023] NSWCA 51 Newell; Muraniti v De Costi [2018] NSWCA 49 Nitopi v Nitopi [2022] NSWCA 162 Payne v Parker [1976] 1 NSWLR 191 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 Sangha v Baxter [2009] NSWCA 78 The J & P Marlow (No 2) Pty Ltd v Joseph Haynes [2023] NSWCA 117 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Turner v Windever [2005] NSWCA 73 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 Wu v Ling [2016] NSWCA 322
Category:	Principal judgment
Parties:	WIB Australia Pty Ltd (Plaintiff) Shainaz Bi (First Defendant) Shabnum Begum (Second Defendant)
Representation:	Counsel: