Hawke v ACN 117 688 356 Pty Limited [2007] NSWSC 1272

Hawke v ACN 117 688 356 Pty Limited [2007] NSWSC 1272

The 20 September 2007 document was a new offer, not merely an amendment to the 14 September 2007 offer, because it changed significant matters including the principal sum, the loan term, the withdrawal provision, and the minimum interest payable in advance. The new offer required acceptance and was not accepted. Once the later document was characterised as a new offer, the first offer was withdrawn; because it was accepted that no fees were payable if the accepted offer was withdrawn, the cross-claim failed and the caveat had to be withdrawn.

Jurisdiction
Australia
Judgment Date
24 October 2007
Procedural Posture
Cross Claim in Equity Division Proceedings Concerning Removal of a Caveat / Final Hearing; Ex Tempore Judgment
Outcome
Cross-claim dismissed; defendant ordered to withdraw the caveat and pay the plaintiff's costs.
Legal Topics
['offer and Acceptance' 'withdrawal of Offer' 'loan Facility Indicative Letter of Offer' 'caveat' 'fees Payable on Proposed Loan']
['contracts' 'equity' 'real Property'] ['offer and Acceptance' 'withdrawal of Offer' 'loan Facility Indicative Letter of Offer' 'caveat' 'fees Payable on Proposed Loan']

Case Brief

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Procedural Posture

Cross Claim in Equity Division Proceedings Concerning Removal of a Caveat / Final Hearing; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Further Amended Indicative Letter of Offer dated 20 September 2007 withdrew the Amended Indicative Letter of Offer dated 14 September 2007 or merely amended it.' 'Whether any fees were payable to the defendant/cross-claimant if the 14 September 2007 offer was withdrawn.' 'Whether the caveat should remain if the cross-claim failed.']

Ratio Decidendi

The 20 September 2007 document was a new offer, not merely an amendment to the 14 September 2007 offer, because it changed significant matters including the principal sum, the loan term, the withdrawal provision, and the minimum interest payable in advance. The new offer required acceptance and was not accepted. Once the later document was characterised as a new offer, the first offer was withdrawn; because it was accepted that no fees were payable if the accepted offer was withdrawn, the cross-claim failed and the caveat had to be withdrawn.

Court Disposition

Cross-claim dismissed; defendant ordered to withdraw the caveat and pay the plaintiff's costs.

Orders

  • ['Order that the cross-claim be dismissed.' "Order that the defendant hand to the plaintiff's solicitors by 11am on 25 October 2007 a duly executed withdrawal of caveat AD448791." "Order the defendant cross-claimant pay the plaintiff's costs of the proceedings." 'Order the exhibits be returned.' 'Order that the sum...