Liang v Dai [2019] NSWDC 595

Liang v Dai [2019] NSWDC 595

The preliminary conversations did not create a concluded contract because essential terms, including the parties, precise loan amount, term and interest, were not agreed and were objectively left for further agreement. The subsequently executed Deed of Loan and Deed of Variation clearly identified the plaintiff as lender and the defendant as borrower and guarantor, contained entire agreement clauses, and were not shown to be a sham or liable to rectification. The commercial purpose of funding Ming Tian's bank guarantees and the inclusion of a personal guarantee could not contradict the deeds' plain language. The defendant was therefore personally bound, breached the repayment obligations,...

Jurisdiction
Australia
Judgment Date
24 October 2019
Procedural Posture
Civil Claim for Damages for Breach of a Loan Agreement / Principal Judgment After Hearing
Outcome
Verdict for the plaintiff in the sum of $550,691.25, with the defendant to pay the plaintiff's costs on the ordinary basis and leave to seek alternative orders as to interest and/or costs.
Legal Topics
['breach of Contract' 'loan Agreement' 'deeds' 'formation of Contract' 'consideration' 'contractual Construction' 'extrinsic Evidence' 'prior Negotiations' 'privity' 'agency' 'costs' 'interest']
['contract Law' 'civil Procedure'] ['breach of Contract' 'loan Agreement' 'deeds' 'formation of Contract' 'consideration' 'contractual Construction' 'extrinsic Evidence' 'prior Negotiations' 'privity' 'agency' 'costs' 'interest']

Case Brief

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Procedural Posture

Civil Claim for Damages for Breach of a Loan Agreement / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the conversations before execution of the Deed of Loan constituted a concluded agreement with different parties from those named in the deeds.' 'Whether the plaintiff was the proper party to sue and the defendant the proper party to be sued under the Deed of Loan and Deed of Variation.' 'Whether the defendant signed personally or only as agent for Ming Tian Pty Ltd.' 'Whether surrounding circumstances or prior negotiations could qualify or contradict the plain terms of the deeds.' 'Whether the defendant breached the Deed of Loan as varied by the Deed of Variation and what damages and interest were payable.']

Ratio Decidendi

The preliminary conversations did not create a concluded contract because essential terms, including the parties, precise loan amount, term and interest, were not agreed and were objectively left for further agreement. The subsequently executed Deed of Loan and Deed of Variation clearly identified the plaintiff as lender and the defendant as borrower and guarantor, contained entire agreement clauses, and were not shown to be a sham or liable to rectification. The commercial purpose of funding Ming Tian's bank guarantees and the inclusion of a personal guarantee could not contradict the deeds' plain language. The defendant was therefore personally bound, breached the repayment obligations,...

Court Disposition

Verdict for the plaintiff in the sum of $550,691.25, with the defendant to pay the plaintiff's costs on the ordinary basis and leave to seek alternative orders as to interest and/or costs.

Orders

  • ['Verdict for the plaintiff in the sum of $550,691.25 (including interest at the rate of 10% per annum up to 24 October 2019 (463 days)).' "The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis." 'In the event that either party seeks an alternative order as to interest and/or costs,...