Berhero Pty Ltd v Hinds [2023] NSWSC 1022

Berhero Pty Ltd v Hinds [2023] NSWSC 1022

The broker was not entitled to its fee because the ANZ discussion paper was not "in the terms of the Loan Term Sheet" and did not amount to substantial performance. Properly construed in its commercial context, the Loan Term Sheet required finance that would enable the clients to purchase the land and develop the site, including meeting the initial payment required under the memorandum of understanding. Although the ANZ discussion paper referred to a $13.5 million facility, its conditions meant that only about $3.3 million may have been available against a first land purchase funding requirement of $7,135,150, leaving a substantial shortfall. This was a significant difference on an...

Jurisdiction
Australia
Judgment Date
30 August 2023
Procedural Posture
Equity Commercial List Proceeding by Mortgage Broker Seeking to Recover Brokerage Fee / Principal Judgment After Hearing
Outcome
Judgment for defendants.
Legal Topics
['mortgage Broker Retainer' 'contractual Construction' 'substantial Performance' 'loan Term Sheet' 'discussion Paper' 'expert Evidence' 'admissibility of Expert Report']
['contract Law' 'equity' 'commercial Law' 'evidence'] ['mortgage Broker Retainer' 'contractual Construction' 'substantial Performance' 'loan Term Sheet' 'discussion Paper' 'expert Evidence' 'admissibility of Expert Report']

Case Brief

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Procedural Posture

Equity Commercial List Proceeding by Mortgage Broker Seeking to Recover Brokerage Fee / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the ANZ discussion paper was issued "in the terms of the Loan Term Sheet" so that the broker became entitled to its brokerage fee.' 'Whether the broker substantially performed its contractual obligation to procure finance for the purchase and development of the Ripley Valley land.' "Whether the defendants' expert report concerning lending policy, cashflows and funding shortfall was admissible."]

Ratio Decidendi

The broker was not entitled to its fee because the ANZ discussion paper was not "in the terms of the Loan Term Sheet" and did not amount to substantial performance. Properly construed in its commercial context, the Loan Term Sheet required finance that would enable the clients to purchase the land and develop the site, including meeting the initial payment required under the memorandum of understanding. Although the ANZ discussion paper referred to a $13.5 million facility, its conditions meant that only about $3.3 million may have been available against a first land purchase funding requirement of $7,135,150, leaving a substantial shortfall. This was a significant difference on an...

Court Disposition

Judgment for defendants.

Orders

  • ['Judgment in favour of the defendants in the amount of $154,000 together with interest under section 100 of the Civil Procedure Act 2005 (NSW).' 'Summons otherwise dismissed with costs.' 'Commercial List Cross-Statement dismissed.' "Cross claimants to pay the cross defendants' costs thrown away." 'Parties to notify...