Wright v Westpac Banking Corporation

[2010] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

Wright & Ors v Westpac Banking Corporation [2010] QCA 190

PARTIES:

RONALD JOHN WRIGHT
(first defendant/first appellant)
NERIDA VALERIE WRIGHT
(second defendant/second appellant)
SANDRA LOUISE PEPI
(third defendant/third appellant)
SHARON LEE SCHOFIELD
(fourth defendant/fourth appellant)
KYLE JONATHON WRIGHT
(fifth defendant/fifth appellant)
ELLIOTT HARVEY SECURITIES LIMITED
ACN 089 156 605
(second defendant by counterclaim/not party to the appeal)
MICHAEL HARVEY
(third defendant by counterclaim/not party to the appeal)
v
WESTPAC BANKING CORPORATION previously ST GEORGE BANK LIMITED ACN 055 513 070 (deregistered)
ACN 007 457 141
(plaintiff/respondent)

FILE NO/S:

Appeal No 13131 of 2009
SC No 2786 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2010

JUDGES:

Holmes and Fraser JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where respondent provided a loan facility to Ronbar Enterprises – where Ronbar required to provide “as is market value ‘in one line’” valuation of security – where upper limit of the loan facility based on the security’s “as if complete” valuation – where initial drawdown limit of the loan facility set at a loan to value ratio of 70 per cent to be reduced to 65 per cent within 90 days of the initial drawdown – where initial drawdown of 27 September 2007 provided on the basis of “as is market value ‘in one line’” valuation – where respondent provided further moneys after the issuing of titles on basis of ‘as if complete’ valuation – where further moneys provided at the lower loan to value ratio of 65 per cent as 90 days had elapsed from the initial drawdown – where Ronbar defaulted in repayment and appellants defaulted on their guarantees – whether facility agreement required the respondent to provide funds on basis of “as if complete” valuation following either the anticipated completion date or the actual completion date of the works – whether appellants entitled to be relieved from their liability to the respondent

GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where a representation was made to Ronbar that the full amount of the loan facility would be available once single titles were registered – where appellants argued that the representation was a late imposed ‘release of titles’ condition and amounted to a variation of the loan facility made without notice – where clause 8.1 of the guarantee and indemnity provided that the rights and liabilities of the parties remain unaffected notwithstanding any acts or omissions made by the respondent – whether, despite clause 8.1, the respondent’s variation of the facility agreement and failure to notify the appellants entitled the appellants to be discharged from their liabilities under the…