Horizon Hotels Pty Ltd v Australian Secured & Managed Mortgages Pty Ltd [2023] NSWCA 231

Horizon Hotels Pty Ltd v Australian Secured & Managed Mortgages Pty Ltd [2023] NSWCA 231

The appeal was allowed because Mr Highmore's entitlement to fees depended on procurement of a loan offer complying with interest and security conditions in the Introducer Mandate Agreement. The offer did not satisfy those requirements—specifically, it included a standard rate above the permissible margin and sought a registered second mortgage, contrary to the agreement's terms. As such, fee entitlement did not crystallise, and Mr Highmore was estopped from claiming fees. The prior orders for payment and extension of caveats were therefore set aside.

Jurisdiction
Australia
Judgment Date
28 September 2023
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; orders below set aside; amended summons dismissed; costs orders made.
Legal Topics
['contract Interpretation' 'introducer Mandate Agreements' 'entitlement to Fees' 'caveats' 'equitable Charges' 'extension of Caveats' 'estoppel Based on Common Assumption']
['contract' 'estoppel' 'real Property'] ['contract Interpretation' 'introducer Mandate Agreements' 'entitlement to Fees' 'caveats' 'equitable Charges' 'extension of Caveats' 'estoppel Based on Common Assumption']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether leave to appeal was required and, if so, should be granted.' 'Whether Mr Highmore procured an offer that complied with the interest rate condition in the agreement.' 'Whether Mr Highmore was estopped from claiming fees because the security required for the loan was not an unregistered second mortgage.']

Ratio Decidendi

The appeal was allowed because Mr Highmore's entitlement to fees depended on procurement of a loan offer complying with interest and security conditions in the Introducer Mandate Agreement. The offer did not satisfy those requirements—specifically, it included a standard rate above the permissible margin and sought a registered second mortgage, contrary to the agreement's terms. As such, fee entitlement did not crystallise, and Mr Highmore was estopped from claiming fees. The prior orders for payment and extension of caveats were therefore set aside.

Court Disposition

Appeal allowed; orders below set aside; amended summons dismissed; costs orders made.

Orders

  • ['Dismiss the appeal in matter No 2022/387563 with no order as to costs.' 'Direct that the documents filed in the appeal be treated as filed in the summons matter.' 'Grant applicant leave to appeal from the judgment in the Equity Division delivered on 6 December 2022.' 'Direct that the draft notice of appeal filed...