Hubbard v Cheah [2011] NSWCA 222

Hubbard v Cheah [2011] NSWCA 222

Clause 2(1)(e) was a complete and independent basis for HPL's liability, and for the guarantors' liability, to pay the $460,000 if the principal repayment to La Trobe had fallen due. The La Trobe facility was for one year and the evidence, particularly the letter of 29 June 2006, supported the inference that the principal had fallen due by 21 June 2006 at the latest. Although that issue was not pleaded with specificity, it was within the pleading and open to find on the evidence. The primary judge's decision was therefore correct and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
01 August 2011
Procedural Posture
Contract Appeal / Appeal From Cheah V HPL Developments Pty Limited & Ors [2010] NSWDC 221
Outcome
Appeal dismissed with costs.
Legal Topics
['interpretation of Development Funding Agreement' 'repayment of Principal Under Investor Loan Facility' 'guarantee Liability' 'pleading and Avoidance of Surprise']
['contract' 'civil Procedure'] ['interpretation of Development Funding Agreement' 'repayment of Principal Under Investor Loan Facility' 'guarantee Liability' 'pleading and Avoidance of Surprise']

Case Brief

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Procedural Posture

Contract Appeal / Appeal From Cheah V HPL Developments Pty Limited & Ors [2010] NSWDC 221

Legal Issues

  1. 1 ['Whether the funds provided by Mr Cheah should be characterised as an investment or loan, and whether that characterisation determined liability.' 'Whether clause 2(1)(e) operated independently of the winding-up provisions in clauses 9, 10 and 11 so that HPL and the guarantors were liable to pay principal repayments when they fell due under the La Trobe facility.' 'Whether it was open to find that the principal repayment to La Trobe had fallen due despite the absence of an explicit pleading or finding by the primary judge.']

Ratio Decidendi

Clause 2(1)(e) was a complete and independent basis for HPL's liability, and for the guarantors' liability, to pay the $460,000 if the principal repayment to La Trobe had fallen due. The La Trobe facility was for one year and the evidence, particularly the letter of 29 June 2006, supported the inference that the principal had fallen due by 21 June 2006 at the latest. Although that issue was not pleaded with specificity, it was within the pleading and open to find on the evidence. The primary judge's decision was therefore correct and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']