Merton v Bank of Queensland Ltd [2013] NSWCA 115

Merton v Bank of Queensland Ltd [2013] NSWCA 115

The advance of $1,070,016.19 made on 26 September 2008 was the "initial funding" for clause 7 of the commercial rate loan agreement. Because subdivision confirmation was not given within three months after that advance, the respondent was not obliged to provide further funds and HVE was in breach. The appellants also failed to establish special grounds for receiving further evidence on appeal because some material was already before the primary judge, some was irrelevant, and the remaining documents had been discovered and were obtainable with reasonable diligence. The appeal and the motion were therefore dismissed.

Jurisdiction
Australia
Judgment Date
14 May 2013
Procedural Posture
Appeal Concerning Construction of a Commercial Rate Loan Agreement, Guarantees and Possession of Mortgaged Properties / Court of Appeal Hearing of Appeal and Notice of Motion to Receive Further Evidence on Appeal
Outcome
Notice of motion dismissed; appeal dismissed; appellants ordered to pay the respondent's costs.
Legal Topics
['development Finance Agreement' 'construction of Loan Agreement' 'initial Funding' 'construction Funding' 'guarantees' 'mortgage Possession' 'further Evidence on Appeal' 'special Grounds']
['banking and Finance' 'contracts' 'civil Procedure' 'property Law'] ['development Finance Agreement' 'construction of Loan Agreement' 'initial Funding' 'construction Funding' 'guarantees' 'mortgage Possession' 'further Evidence on Appeal' 'special Grounds']

Case Brief

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Procedural Posture

Appeal Concerning Construction of a Commercial Rate Loan Agreement, Guarantees and Possession of Mortgaged Properties / Court of Appeal Hearing of Appeal and Notice of Motion to Receive Further Evidence on Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in construing the commercial rate loan agreement as not requiring the respondent to provide further finance to procure subdivision after the advance of $1,070,016.19.' 'Whether the advance of $1,070,016.19 constituted the "initial funding" referred to in clause 7 of the commercial rate loan agreement.' 'Whether the primary judge erred in finding that the advance of $1,070,016.19 evidently included an amount of $180,000 for subdivision costs.' 'Whether special grounds were established for further evidence to be received on appeal.']

Ratio Decidendi

The advance of $1,070,016.19 made on 26 September 2008 was the "initial funding" for clause 7 of the commercial rate loan agreement. Because subdivision confirmation was not given within three months after that advance, the respondent was not obliged to provide further funds and HVE was in breach. The appellants also failed to establish special grounds for receiving further evidence on appeal because some material was already before the primary judge, some was irrelevant, and the remaining documents had been discovered and were obtainable with reasonable diligence. The appeal and the motion were therefore dismissed.

Court Disposition

Notice of motion dismissed; appeal dismissed; appellants ordered to pay the respondent's costs.

Orders

  • ["The appellants' notice of motion seeking an order that further evidence be received on appeal is dismissed." 'The appeal is dismissed.' "The appellants are to pay the respondent's costs."]