Prime Capital Securities Pty Ltd v Gore Hill Transport Pty Ltd [2021] NSWSC 169

Supreme Court New South Wales

Medium Neutral Citation: Prime Capital Securities Pty Ltd v Gore Hill Transport Pty Ltd [2021] NSWSC 169 Hearing dates: 17 February 2021 Date of orders: 3 March 2021 Decision date: 03 March 2021 Jurisdiction: Equity Before: Darke J Decision: Judgment for the plaintiff against the defendants for $26,708.08 plus interest. Declaration to be made that the amount is secured by an equitable charge over a property owned by the second and third defendants. Catchwords: CONTRACTS – construction and interpretation of contracts – terms of loan approval provided for payment of all fees, costs and outlays payable herein if loan not drawn down within 30 days – proposed loan did not proceed – whether fees payable included establishment fee referred to in another section of loan approval CONTRACTS – consideration – lack of consideration – illusory contracts – loan approval – lender given "absolute" discretion to decide whether valuation is satisfactory to it – lender subject to implied obligations including to honestly consider valuation – promises made by lender held not to be illusory MORTGAGES AND SECURITIES – charge – creation of charge – loan approval provides for charge over all property – whether charge is valid when it does not refer to specific property – charge claimed over identifiable property – equitable charge held to be validly created Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Cases Cited: Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Bridge Wholesale Acceptance Corporation (Australia) Ltd v Burnard (1992) 27 NSWLR 415 Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187 Butt v M'Donald (1896) 7 QLJ 68 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Foran v Wight (1989) 168 CLR 385 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (2020) 19 BPR 40,463; [2020] NSWCA 161 Meehan v Jones (1982) 149 CLR 571 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353 Re Clarke; Coombe v Carter (1887) 36 ChD 348 Roberts v Investwell Pty Ltd (in liquidation) [2012] NSWCA 134 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Category: Principal judgment Parties: Prime Capital Securities Pty Ltd (Plaintiff) Gore Hill Transport Pty Ltd (First Defendant) Robert Liu (Second Defendant) Rebecca Liu (Third Defendant) Representation: Counsel: Mr M Fernandes (Plaintiff) Mr P D Reynolds (Defendants)