White v Data Transfer Services Pty Ltd & Ors (No 2) [2022] NSWSC 963

Supreme Court New South Wales

Medium Neutral Citation: White v Data Transfer Services Pty Ltd & Ors (No 2) [2022] NSWSC 963 Hearing dates: 8-9 September and 7 October 2021 Date of orders: 20 July 2022 Decision date: 20 July 2022 Jurisdiction: Equity - Commercial List Before: Williams J Decision: The plaintiff is entitled to the damages, interest and costs sought and the parties are to bring in orders giving effect to these reasons: see paragraph [136]. Catchwords: ESTOPPEL – estoppel by deed – where deed of loan and guarantee contained acknowledgement by defendant borrower of receipt of $2,000,000 from plaintiff lender and indebtedness of the borrower to the lender for that amount – where lender did not pay $2,000,000 to borrower but procured $2,000,000 reduction on purchase price payable by borrower for purchase of business from companies controlled by lender – whether receipt clause in deed of loan and guarantee was a diction adopted by the parties as a convenient description of lender's obligation to procure purchase price reduction – whether borrower and guarantor estopped from denying receipt acknowledged in deed – whether defendant borrower liable to plaintiff lender for failure to repay loan – whether defendant guarantor liable to plaintiff lender for failure to pay amount owing demanded by lender after borrower failed to repay loan Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, s 12GM(7) Civil Procedure Act 2005 (NSW), s 101 Cases Cited: Cousens v Grayridge [2000] VSCA 96 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Greer v Kettle [1938] AC 156 Helmich and Taylor v Thorp and Strathdee [1997] 3 NZLR 86 Labracon Pty Ltd v Cuturich (2013) 17 BPR 32,497; [2013] NSWSC 97 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Sangha v Baxter [2009] NSWCA 78 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: N Seddon, Seddon on Deeds (2015) Category: Principal judgment Parties: Mr John Anthony White (Plaintiff) Data Transfer Services Pty Ltd (ACN 139 443 708) (First Defendant) Mr Maher Mina (Second Defendant) Representation: Counsel: J S Emmett SC with M T Fernandes (Plaintiff) R Marshall SC with M J Heath (Defendants)