SE Ware Street Dev Pty Ltd v Gable Australia Pty Ltd [2023] NSWDC 540

District Court New South Wales

Medium Neutral Citation: SE Ware Street Dev Pty Ltd v Gable Australia Pty Ltd [2023] NSWDC 540 Hearing dates: 21 and 23 November 2023 Date of orders: 4 December 2023 Decision date: 04 December 2023 Jurisdiction: Civil Before: Andronos SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $147,498.61 inclusive of interest. (2) The defendant to pay the plaintiff's costs of the proceedings on the ordinary basis as agreed or assessed. Catchwords: CONTRACTS — Formation — Consideration — Absence of consideration COMMERCE — Money counts — Money had and received Legislation Cited: Civil Procedure Act 2005, s 100 Evidence Act 1995, s 135 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Helton v Allen (1940) 63 CLR 691 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Private Mortgages Australia Pty Limited ACN 600 628 813 as trustee for the PMA Trust v Stever [2019] NSWSC 462 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: SE Ware Street Dev Pty Ltd (plaintiff) Gable Australia Pty Ltd (defendant) Representation: Counsel: Mr A Jucha (plaintiff) Mr P Horobin (defendant)

Solicitors: Paramonte Legal (plaintiff) Creagh & Creagh (defendant) File Number(s): 2022/00220159 Publication restriction: Nil

JUDGMENT 1. On 10 February 2021 the plaintiff, SE Ware Street Dev Pty Ltd, paid to the defendant, Gable Australia Pty Ltd, the sum of $242,000 in connection with a proposed loan from a third party financier to the plaintiff. The defendant procured, or was the broker of, the loan to the plaintiff. No loan agreement was ever executed with the financier and the loan monies were never advanced. The plaintiff says that $132,000 of the monies paid were refundable by the defendant to it pursuant to an express term in an oral agreement struck on 8 February 2021 or, alternatively, as money had and received. It makes no claim for the balance of $110,000, which, it is agreed, was a non-refundable application fee forwarded by the defendant to the financier. 2. The defendant denies that any monies are refundable. It relies on what it says was an anterior oral agreement struck on or about 15 January 2021, with the effect that the payment of $132,000 comprised 50% of a non-refundable origination fee payable by the plaintiff to the defendant. 3. The issues to be determined by the Court may be summarised as follows: 1. What was said at meetings alleged to have taken place on each of 15 January, 30 January and 8 February 2021. 2. Was a contract formed, at any stage, for the provision by the defendant to the plaintiff of loan origination services. 3. What were the terms of any such contract, in particular, was any origination fee refundable to the plaintiff if the loan did not proceed, or was the defendant's right to retain the origination fee an accrued right which could not be affected by any subsequent failure of the loan agreement to eventuate. 4. If no contract is established, whether the plaintiff is entitled to recover the sum of $132,000 from the defendant as money had and received.