Marquess Investment Fund Pty Ltd v Tjen [2023] NSWSC 675

Supreme Court New South Wales

Medium Neutral Citation: Marquess Investment Fund Pty Ltd v Tjen [2023] NSWSC 675 Hearing dates: 13 and 14 February; 13 March; 16 June 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Common Law Before: Chen J Decision: (1) Direct that the parties confer with a view to agreeing upon proposed orders finalising the proceedings in accordance with these reasons (including costs), with agreed orders to be filed and served by 30 June 2023, 5pm. (2) To the extent that agreement cannot be reached, direct that each party is to file and serve, by 30 June 2023, 5 pm, the proposed orders it seeks with submissions explaining the basis for why those orders are sought limited to no more than 2 pages. (3) Direct that any evidence in support of any contested orders be filed and served by 30 June 2023, 5pm. (4) The matter will be listed for further argument, and the entry of further orders, on a date to be fixed. Catchwords: CONTRACTS – construction of contract – where parties entered into forbearance agreement – whether the forbearance agreement discharged the borrowers' obligations under the original loan agreement CONTRACTS – termination – repudiation – where the borrowers did not make repayments on terms with the forbearance agreement - where the lots of land that formed part of the project were progressively sold such that the borrowers were factually unable to perform the project – whether repudiation of the forbearance agreement was accepted by the sending of letters of demand to the borrowers Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Almond Investors Limited v Kualitree Nursery Pty Limited [2011] NSWCA 198 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 Ayers Rock SkyShip Pty Ltd v Voyages Indigenous Tourism Australia Pty Ltd (2019) 19 BPR 39541; [2019] NSWSC 828 Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Champtaloup v Thomas (1976) 2 NSWLR 264 Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 1168 Ex parte Dawes; In re Moon (1886) 17 QBD 275 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 Franklins Pty Limited v Metcash Trading Limited (2009) 76 NSWLR 603, [2009] NSWCA 407 Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 Heyman v Darwin's Ltd [1942] AC 356 Hickory Developments Pty Ltd v Brunswick Retail Investment Pty Ltd [2012] VSC 224 Holland v Wiltshire (1954) 90 CLR 409; [1954] HCA 42 Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133; [1919] HCA 64 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115; [2007] HCA 61 Lakshmijit v Sherani [1974] AC 605 Laurinda Pty Limited v Capalaba Park Shopping Centre Pty Limited (1989) 166 CLR 623; [1989] HCA 23 Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870 OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1; [2013] NSWCA 27 Payne v Parker [1976] 1 NSWLR 191 Rawson v Hobbs (1961) 107 CLR 466; [1961] HCA 72 Ryder v Frohlich [2004] NSWCA 472 Thai Airways International Public Company Ltd v Farag Menzies Aviation Group (Ground Services) Australia Pty Ltd [2011] NSWCA 172 Vitol SA v Norelf Ltd [1996] AC 800 Vivlios v Westpac Banking Corporation [2010] QCA 230 Wilkie v Gordian Runoff Limited (2005) 221 CLR 522; [2005] HCA 17 Wood Factory Pty Limited v Kiritos Pty Limited (1985) 2 NSWLR 105 Zhu v Wang [2021] NSWCA 240 Texts Cited: JD Heydon, Heydon on Contract (1st ed, 2019, Thomson Reuters) Category: Principal judgment Parties: Marquess Investment Fund Pty Limited (plaintiff) Joshua Tjen (defendant) Representation: Counsel: Mr D P O'Connor (plaintiff) Mr C D Freeman (defendant) Solicitors: Douros Jackson Lawyers (plaintiff) Braddon Marx Lawyers (defendant) File Number(s): 2020/297756 Publication restriction: Nil