Saeed v Capital Securities Australia Pty Ltd [2020] NSWSC 223

Saeed v Capital Securities Australia Pty Ltd [2020] NSWSC 223

The appeal failed because the Indicative letter, although not a binding loan agreement, created a separate ancillary contract requiring the plaintiffs to pay the establishment, legal and valuation-related fees even if the loan did not proceed. Stever did not assist the plaintiffs because the Indicative letter in this case was not superseded by the Mortgage. In any event, the Mortgage independently required payment of the same fees, and the defendant's failure to demand payment at or prior to entry into the Mortgage did not waive the debt or create an estoppel.

Jurisdiction
Australia
Judgment Date
13 March 2020
Procedural Posture
Civil Appeal; Contract Dispute / Appeal Pursuant to S 39 of the Local Court Act 2007 (nsw) From a Local Court Judgment
Outcome
Amended Summons dismissed; plaintiffs ordered to pay the defendant's costs on an indemnity basis.
Legal Topics
['formation of Contract' 'indicative Letter of Offer' 'loan Fees' 'mortgage Fees' 'intention to Create Legal Relations' 'whether Indicative Offer Was Superseded by Mortgage' 'waiver by Failure to Demand Payment' 'indemnity Costs']
['contracts' 'waiver' 'civil Procedure' 'costs'] ['formation of Contract' 'indicative Letter of Offer' 'loan Fees' 'mortgage Fees' 'intention to Create Legal Relations' 'whether Indicative Offer Was Superseded by Mortgage' 'waiver by Failure to Demand Payment' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil Appeal; Contract Dispute / Appeal Pursuant to S 39 of the Local Court Act 2007 (nsw) From a Local Court Judgment

Legal Issues

  1. 1 ['Whether the Indicative letter of offer created a binding contract requiring the plaintiffs to pay establishment, legal and valuation fees even though the loan did not proceed.' 'Whether Private Mortgages Australia Pty Limited ACN 600 628 813 as trustee for the PMA Trust v Stever [2019] NSWSC 462 required the Mortgage to be preferred over the Indicative letter.' 'Whether the Mortgage independently required payment of the fees if the loan did not proceed.' 'Whether the defendant waived entitlement to the fees by not demanding payment at or prior to entry into the Mortgage.' 'Whether the defendant was entitled to indemnity costs.']

Ratio Decidendi

The appeal failed because the Indicative letter, although not a binding loan agreement, created a separate ancillary contract requiring the plaintiffs to pay the establishment, legal and valuation-related fees even if the loan did not proceed. Stever did not assist the plaintiffs because the Indicative letter in this case was not superseded by the Mortgage. In any event, the Mortgage independently required payment of the same fees, and the defendant's failure to demand payment at or prior to entry into the Mortgage did not waive the debt or create an estoppel.

Court Disposition

Amended Summons dismissed; plaintiffs ordered to pay the defendant's costs on an indemnity basis.

Orders

  • ['Amended Summons dismissed.' "The plaintiff is to pay the defendant's costs on an indemnity basis."]