CAYDEN PTY LIMITED TRADING AS ACUITY FUNDING v PATRICK NOUH & 3 ORS [2008] NSWSC 1219

CAYDEN PTY LIMITED TRADING AS ACUITY FUNDING v PATRICK NOUH & 3 ORS [2008] NSWSC 1219

The plaintiff was not entitled to commission because the Bankwest email was not an approval or approval in principle of the loan application the plaintiff was retained to procure, the proposed loan materially departed from the defendants' requirements, no valuation occurred, and the special conditions precedent to fees were not shown to have been fulfilled. As no fees were due, no charge supported the caveats. The $3300 initial payment was recoverable because the consideration for it wholly failed.

Jurisdiction
Australia
Judgment Date
12 November 2008
Procedural Posture
Equity Proceedings by Summons Concerning a Mortgage Broker Retainer, Commission Claim, Caveats, and Cross Claim for Recovery of an Initial Fee / Final Judgment on Summons and Cross Claim
Outcome
Judgment for the defendants on the summons; judgment for the cross-claimants on claim one of the cross claim for $3300; repayment of interlocutory funds ordered; caveat to be withdrawn; cross-claim costs awarded to the cross-claimants.
Legal Topics
['mortgage Broker Retainer' 'commission Entitlement' 'loan Approval in Principle' 'conditions Precedent' 'caveats' 'failure of Consideration']
['contract' 'equity' 'restitution' 'real Property'] ['mortgage Broker Retainer' 'commission Entitlement' 'loan Approval in Principle' 'conditions Precedent' 'caveats' 'failure of Consideration']

Case Brief

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Procedural Posture

Equity Proceedings by Summons Concerning a Mortgage Broker Retainer, Commission Claim, Caveats, and Cross Claim for Recovery of an Initial Fee / Final Judgment on Summons and Cross Claim

Legal Issues

  1. 1 ['Whether the plaintiff obtained a loan approval or approval in principle sufficient to earn commission under the retainer agreement.' 'Whether the special conditions in the retainer agreement were fulfilled so as to entitle the plaintiff to fees.' "Whether the plaintiff was entitled to maintain caveats over the defendants' properties as security for fees." 'Whether the defendants were entitled to recover the $3300 paid on acceptance of the retainer conditions.']

Ratio Decidendi

The plaintiff was not entitled to commission because the Bankwest email was not an approval or approval in principle of the loan application the plaintiff was retained to procure, the proposed loan materially departed from the defendants' requirements, no valuation occurred, and the special conditions precedent to fees were not shown to have been fulfilled. As no fees were due, no charge supported the caveats. The $3300 initial payment was recoverable because the consideration for it wholly failed.

Court Disposition

Judgment for the defendants on the summons; judgment for the cross-claimants on claim one of the cross claim for $3300; repayment of interlocutory funds ordered; caveat to be withdrawn; cross-claim costs awarded to the cross-claimants.

Orders

  • ['Upon the summons, judgment for the defendants with costs.' 'Upon the cross claim, claim one, judgment for the cross-claimants for $3300.' 'The sum of $13,800 paid by the defendants under interlocutory arrangements be repaid to the defendants.' 'The plaintiff withdraw caveat AD793669 on or before 13 November 2008.'...