Merlin Advisors Pty Limited v Coombs [2023] NSWDC 647

Procedural Posture

Civil Action for Damages for Breach of Contract and Debt / Principal Judgment After Hearing

Legal Issues

1. 1 ['Whether the defendant was bound by the recitals and operative terms of the deed of acknowledgment of debt and loan agreement dated 31 July 2019.' 'Whether the benefit of the deed was assigned to the plaintiff and whether notice of assignment was sufficient or any defect was cured.' 'Whether additional funds advanced by the plaintiff to or for the defendant were repayable under the deed.' "Whether the defendant's allegations about collusion, fraud, original loan documents, and taxation treatment provided a defence to the plaintiff's claim." 'The amount recoverable by the plaintiff, including contractual interest and costs.']

Ratio Decidendi

The defendant was bound by the deed acknowledging the debt and could not go behind the recitals or operative acknowledgment of indebtedness. The lender's rights under the deed were assigned to the plaintiff; although the initial notice of transfer was defective because it identified Mr Wilkinson personally rather than the plaintiff company, that defect was cured by the later notice of 10 November 2019. The evidence established further advances and the defendant's liability for his share of Flying Tigers expenses, and the defendant's allegations about collusion, tax deductions, and the original loan documents did not answer the contractual claim. The plaintiff proved its quantum, including...

Court Disposition

Verdict and judgment for the plaintiff against the defendant for $831,009.68.

Orders

• ['Judgment for the plaintiff against the defendant for $831,009.68.' 'The defendant is to pay the plaintiff its costs of yesterday and today on an indemnity basis.']