Fuller v Albert [2021] NSWCA 88

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller v Albert [2021] NSWCA 88 Hearing dates: 30 November 2020 Date of orders: 18 May 2021 Decision date: 18 May 2021 Before: Macfarlan JA at [1]; Brereton JA at [2]; Emmett AJA at [3] Decision: Order that: 1. The appeal be allowed. 2. The orders made by the primary judge on 14 July 2020 be set aside. 3. The proceedings be remitted to the Equity Division for further determination in accordance with these reasons. 4. The First and Second Respondents pay the Appellant's costs of the appeal. 5. The notice of motion filed on 11 November 2020 be dismissed, with costs to be the costs of the parties at first instance. Catchwords: CONTRACTS — implied terms — terms implied in fact — necessity — numerous alternative possible constructions — agreement constituted by combination of oral, written and implied terms CONTRACTS — termination — repudiation of contract — acceptance of repudiation — allegations of fraud — whether terms of conversation amounted to repudiation — significance of pleadings inconsistent with terms of contract as later alleged MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagor — equity of redemption — mortgage over company share — contractual right to redemption extinguished on default — whether equitable right to redemption survived in spite of delay Legislation Cited: Limitation Act 1969 (NSW) Cases Cited: Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; 366 ALR 635 Texts Cited: Codex of Justinian, 8.34.3, 8.33 WW Buckland, A Textbook of Roman Law: From Augustus to Justinian (3rd rev ed, 1963, Cambridge University Press) Category: Principal judgment Parties: Eric Andrew Fuller (Appellant) Kerry Albert (First Respondent) Sandra May Albert (Second Respondent) Matcove Pty Ltd (Third Respondent) Representation: Counsel: D L Cook SC (Appellant) C R Newlinds SC with M E Hall (First and Second Respondents) No appearance (Third Respondent)