Berhero Pty Ltd v Hinds [2023] NSWSC 1022

Supreme Court New South Wales

Medium Neutral Citation: Berhero Pty Ltd v Hinds [2023] NSWSC 1022 Hearing dates: 13 June 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Judgment for defendants. Catchwords: MORTGAGE BROKER — property developer engages broker to obtain $13.5M finance — vendor prepared to be paid in stages — first payment is $6.35M — developer wants 100% debt funding — broker provides Loan Term Sheet with features of loan required for purchase of land and development — broker entitled to fee on procuring discussion paper from lender 'in the terms of' the term sheet —application for finance misrepresents that developer has already purchased the land — seeks finance to finalise the development — bank issues discussion paper for $13.5M facility – lending covenants mean only half of funds needed for first payment will be available —contractual construction – whether contract substantially performed – principles and case law review at [66]-[69], [72]-[74] — no substantial performance — broker not entitled to fee. EXPERT EVIDENCE — expert in credit risk and lending policy — expert considers loan application and discussion paper — analysis of cashflows and application of lending conditions — whether report linked reasoning to expertise — principles at [81]-[83] — whether assumptions proved — report admitted. Cases Cited: Allianz Australia Ltd v Sim [2012] NSWCA 68 Australian Securities and Investments Commission v Rich [2005] NSWCA 152 Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531 Bolton v Mahadeva [1972] 1 WLR 1009 Cayden Pty Limited t/as Acuity Funding v Nouh [2008] NSWSC 1219 Connor v Stainton (1924) 27 WALR 72 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Fuller v Avichem Pty ltd (t/as Adkins Building & Hardware [2019] NSWCA 305 Hart v Federal Commissioner of Taxation (No 2) [2016] FCA 897 Hoering v Isaacs [1952] 2 All ER 176 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Simpson Steel Structures v Spencer [1964] WAR 101 Zamperoni Decorators Pty Ltd v Lo Presti [1983] VR 338 Category: Principal judgment Parties: Berhero Pty Ltd (Plaintiff) Paul Hinds (First Defendant) RV Developments Australia Pty Ltd (Second Defendant) RV Developments Australia Pty Ltd as Trustee for RV Developments Australia Unit Trust (Third Defendant) Representation: Counsel: Mr B Le Plastrier (Plaintiff) Mr S Golledge SC/Mr J Douglas (Defendants)