Provident Capital Limited v Agusta Pty Ltd and Nida Ferella [2007] NSWDC 309

Provident Capital Limited v Agusta Pty Ltd and Nida Ferella [2007] NSWDC 309

The defendants became bound by the letter of offer when the plaintiff received and accepted the version amended only to remove Gustavo Ferella as guarantor. Any later alleged amendment deleting the fee obligations was not shown to have been communicated to or accepted by the plaintiff and therefore did not vary the contract. The contract expressly entitled the plaintiff to withdraw the offer at its sole discretion and the plaintiff's insistence on transfer of the property did not amount to conduct depriving it of its contractual rights or creating an estoppel. The plaintiff was therefore entitled to recover the contractual application fee, legal fees and caveat-related costs.

Jurisdiction
Australia
Judgment Date
23 November 2007
Procedural Posture
Civil Claim for Breach of Contract Concerning Mortgage Finance, Application Fee, Legal Fees and Related Expenses / Ex Tempore Judgment After Hearing
Outcome
Verdict and judgment for the Plaintiff in the sum of $119,341.00 together with interest in the amount of $19,225.34; Defendants to pay Plaintiff's costs as agreed or assessed.
Legal Topics
['breach of Contract' 'mortgage Finance Application' 'variation of Terms' 'damages' 'guarantee' 'estoppel' 'adverse Inference']
['contract Law' 'mortgage Finance' 'civil Procedure'] ['breach of Contract' 'mortgage Finance Application' 'variation of Terms' 'damages' 'guarantee' 'estoppel' 'adverse Inference']

Case Brief

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Procedural Posture

Civil Claim for Breach of Contract Concerning Mortgage Finance, Application Fee, Legal Fees and Related Expenses / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first defendant and the second defendant as guarantor were bound by the 16 March 2006 letter of offer, as amended only to remove Gustavo Ferella as guarantor.' 'Whether alleged further amendments marking fee clauses as "not applicable" were communicated to or accepted by the plaintiff so as to vary the contract.' "Whether the plaintiff's subsequent insistence on transfer of the secured property to the first defendant deprived the defendants of consideration or gave rise to an estoppel preventing enforcement." 'What amounts were recoverable under the contractual fee and expenses clauses.']

Ratio Decidendi

The defendants became bound by the letter of offer when the plaintiff received and accepted the version amended only to remove Gustavo Ferella as guarantor. Any later alleged amendment deleting the fee obligations was not shown to have been communicated to or accepted by the plaintiff and therefore did not vary the contract. The contract expressly entitled the plaintiff to withdraw the offer at its sole discretion and the plaintiff's insistence on transfer of the property did not amount to conduct depriving it of its contractual rights or creating an estoppel. The plaintiff was therefore entitled to recover the contractual application fee, legal fees and caveat-related costs.

Court Disposition

Verdict and judgment for the Plaintiff in the sum of $119,341.00 together with interest in the amount of $19,225.34; Defendants to pay Plaintiff's costs as agreed or assessed.

Orders

  • ['Verdict and Judgment for the Plaintiff in the sum of $119,341.00 together with interest in the amount of $19,225.34.' "Defendants to pay Plaintiff's costs as agreed or assessed."]