Turning Point Capital Pty Ltd v Dempsey [2022] NSWDC 185

District Court New South Wales

Medium Neutral Citation: Turning Point Capital Pty Ltd v Dempsey [2022] NSWDC 185 Hearing dates: 25 May 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the defendant. (2) Order the plaintiff to pay the costs of the defendant. Catchwords: CONTRACT – businesslike interpretation of commercial contract – what a reasonable businessperson would have understood those terms to mean in context – commercial purpose of parties to secure refinance in the amount of $12,500,000 – such finance not obtained – whether plaintiff as mortgage broker entitled to fees set out in mandate – whether there was a letter of offer in accordance with the mandate UNJUST ENRICHMENT – alternative claim in quantum meruit – whether there was unjust enrichment of defendant Legislation Cited: Corporations Act 2001, s 127 Cases Cited: McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579 Category: Principal judgment Parties: Turning Point Capital Pty Ltd (Plaintiff) Barry Dempsey (Defendant) Representation: Counsel: M Klooster (Plaintiff) Self-represented (Defendant)

Solicitors: Matthew Grew (Plaintiff) File Number(s): 2021/00128064

Judgment

Introduction 1. By a Statement of Claim filed on 7 May 2021 the plaintiff Turning Point Capital Pty Ltd (Turning Point) has sued the defendant Mr Barry Dempsey for breach of a written agreement. 2. Paragraph 3 of the Statement of Claim pleads that the written agreement was entered into on 13 May 2019 and was an agreement for Turning Point to procure a loan for the benefit of Mr Dempsey. The pleading alleged that the agreement was entirely in writing and comprised the following documents: 1. A document entitled "Terms of Engagement – Commercial Lending" comprising two pages dated 11 May 2019. 2. A document entitled "Authority to Proceed" comprising one page dated 11 May 2019 and signed by Mr Dempsey on 13 May 2019. 1. Mr Dempsey represented himself at the hearing, which was conducted by audio visual link since Mr Dempsey was unwell and resided in Queensland. 2. The evidence for the plaintiff consisted of an affidavit of Mr Shahani sworn on 14 February 2022 (PX 1) together with an exhibit to the affidavit comprising 563 pages (PX 2). Mr Shahani was not cross-examined. I made a limiting order in relation to the evidence of Mr Shahani, so that any assertion he made about the nature or characterisation of a document (eg describing a letter as a "loan offer") was not received as evidence as to the legal effect of the document. 3. There was no objection to PX 1 or PX 2. 4. Mr Dempsey did not give evidence or call any evidence. He did not tender any documents. 5. The resolution of the case requires the court to construe the construction of the contract pleaded by Turning Point. The court must also consider whether two documents provided by potential lenders mean that Turning Point is entitled to a fee.