Horizon Hotels Pty Ltd v Australian Secured & Managed Mortgages Pty Ltd [2023] NSWCA 231

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Horizon Hotels Pty Ltd v Australian Secured & Managed Mortgages Pty Ltd [2023] NSWCA 231 Hearing dates: 10 August 2023 Date of orders: 28 September 2023 Decision date: 28 September 2023 Before: Payne JA at [1]; Adamson JA at [2]; Basten AJA at [3] Decision: In matter No 2022/387563 (appeal proceedings): (1) Dismiss the appeal with no order as to costs. (2) Direct that the documents filed in the appeal be treated as filed in the summons matter. In matter No 2023/168897 (summons matter): (1) Grant the applicant leave to appeal from the judgment in the Equity Division delivered on 6 December 2022. (2) Direct that the draft notice of appeal filed in the appeal proceedings be treated as the notice of appeal in this matter. (3) Allow the appeal and set aside the judgment and orders made in the Equity Division on 6 December 2022. (4) In lieu thereof: (a) dismiss the amended summons filed in the Equity Division on 14 July 2022; (b) order that the plaintiffs pay the defendant's costs of the proceedings in the Division; (5) Order that the respondents pay the appellant's costs in this Court. Catchwords: CONTRACT – interpretation – entitlement to fees under an introducer mandate agreement – whether loan offer complied with interest rate requirement – offer contained "standard rate" and "concessional rate" – standard rate so described to avoid penalty – intention that standard rate be within prescribed range – fees not payable for non-compliant offer ESTOPPEL – common assumption – fee entitlement crystallised only with offer of loan secured by unregistered second mortgage and caveat – claimant estopped from obtaining fees where offer non-compliant with fee assumption REAL PROPERTY – caveats – equitable charges – where introducer mandate agreement and loan offer grant equitable charges over the land to secure the payment of fees – whether equitable charges extended to judgment debt Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, s 60 Judiciary Act 1903 (Cth), s 35 Real Property Act 1900 (NSW), s 74K Supreme Court Act 1970 (NSW), s 101 Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40 Category: Principal judgment Parties: Horizon Hotels Pty Ltd (Appellant) Australian Secured & Managed Mortgages Pty Ltd (First Respondent) Craig Steven Highmore (Second Respondent) Representation: Counsel: B Nolan (Appellant) J Foley (First and Second Respondent)