SE Ware Street Dev Pty Ltd v Gable Australia Pty Ltd [2023] NSWDC 540

SE Ware Street Dev Pty Ltd v Gable Australia Pty Ltd [2023] NSWDC 540

There was no extant contract before 8 February 2021 giving the defendant an accrued right to a non-refundable origination fee. On 8 February 2021 the defendant orally offered to procure finance for the plaintiff for a refundable 2% origination fee, refundable if the RF Eclipse loan did not proceed for any reason. The plaintiff accepted that offer by paying $242,000 on 10 February 2021, including $132,000 referable to the defendant's origination fee. Because the loan did not proceed, the defendant was contractually obliged to refund $132,000, with interest awarded to judgment.

Jurisdiction
Australia
Judgment Date
04 December 2023
Procedural Posture
Civil Proceedings Concerning an Alleged Oral Contract for Loan Origination Services and an Alternative Claim for Money Had and Received / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the defendant.
Legal Topics
['contract Formation' 'consideration' 'oral Contracts' 'loan Origination Fees' 'refundability of Fees' 'money Had and Received' 'interest' 'costs' 'assessment of Evidence']
['contracts' 'commercial Law' 'civil Procedure' 'evidence'] ['contract Formation' 'consideration' 'oral Contracts' 'loan Origination Fees' 'refundability of Fees' 'money Had and Received' 'interest' 'costs' 'assessment of Evidence']

Case Brief

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Procedural Posture

Civil Proceedings Concerning an Alleged Oral Contract for Loan Origination Services and an Alternative Claim for Money Had and Received / Principal Judgment After Hearing

Legal Issues

  1. 1 ['What was said at meetings alleged to have taken place on each of 15 January, 30 January and 8 February 2021.' 'Whether a contract was formed for the provision by the defendant to the plaintiff of loan origination services.' 'What were the terms of any contract, including whether any origination fee was refundable if the loan did not proceed.' 'If no contract was established, whether the plaintiff was entitled to recover $132,000 from the defendant as money had and received.']

Ratio Decidendi

There was no extant contract before 8 February 2021 giving the defendant an accrued right to a non-refundable origination fee. On 8 February 2021 the defendant orally offered to procure finance for the plaintiff for a refundable 2% origination fee, refundable if the RF Eclipse loan did not proceed for any reason. The plaintiff accepted that offer by paying $242,000 on 10 February 2021, including $132,000 referable to the defendant's origination fee. Because the loan did not proceed, the defendant was contractually obliged to refund $132,000, with interest awarded to judgment.

Court Disposition

Judgment for the plaintiff against the defendant.

Orders

  • ['Judgment for the plaintiff against the defendant in the sum of $147,498.61 inclusive of interest.' "The defendant to pay the plaintiff's costs of the proceedings on the ordinary basis as agreed or assessed."]