Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531

Supreme Court New South Wales

Medium Neutral Citation: Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531 Hearing dates: 19-20 April 2022 Date of orders: 4 May 2022 Decision date: 04 May 2022 Jurisdiction: Equity Before: Darke J Decision: Plaintiff entitled to a monetary judgment, in an amount to be calculated, against the first and second defendants. Catchwords: CONTRACTS – deeds – where third defendant retained plaintiff finance broker in relation to proposed refinancing transaction – where first and second defendants guaranteed third defendant's obligations under agreement – dispute as to whether a service fee became payable under agreement – where defendants subsequently executed a deed acknowledging plaintiff's right to service fee under agreement – where deed contains undertaking to pay service fee plus interest – where second defendant claimed to have executed deed due to abuse and intimidation by plaintiff – held that execution of deed not procured by unfair or illegitimate pressure – held that first and second defendants obliged to pay service fee plus interest in accordance with deed MORTGAGES AND SECURITIES – charge – where charge expressed to secure moneys that become due and payable under agreement – where service fee did not become due and payable under agreement – where subsequent deed acknowledges that service fee is payable under agreement and refers to charging clause in agreement as valid – whether defendants precluded by estoppel by deed from asserting that there is no amount secured by the charge – where enforcement of charge is not an action on deed to enforce rights arising under deed – held no estoppel by deed precluded defendants from asserting that no moneys became due and payable under the agreement such as to be secured by the charge – plaintiff held not to be entitled to enforce charge to recover amount due under deed Legislation Cited: Corporations Act 2001 (Cth), s 127 Cases Cited: Australia and New Zealand Banking Group Ltd v Bragg (No 3) [2017] NSWSC 208 Burkett v Bendigo and Adelaide Bank Ltd (No 2) (2018) 133 ACSR 411; [2018] VSC 723 Minassian v Minassian [2010] NSWSC 708 Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337 Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 Re Quality Blended Liquor Pty Ltd [2015] 2 Qd R 381; [2014] QSC 234 Segboer v AJ Richardson Properties Pty Ltd (2012) 16 BPR 31,235; [2012] NSWCA 253 Category: Principal judgment Parties: Barrington Winstanley Group Pty Ltd (Plaintiff) Sandra Henri Edmonds (First Defendant) David James Edmonds (Second Defendant) DSJSE Pty Ltd (Third Defendant) NWC Finance Letter of Offer Pty Ltd (Fourth Defendant) Jason Mark Hulbert (Fifth Defendant) Representation: Counsel: Mr M R Pesman SC (Plaintiff)