Macarthur Farm Pty Ltd (Receivers and Managers Appointed) v Warneet Super Pty Ltd [2024] NSWSC 535

Supreme Court New South Wales

Medium Neutral Citation: Macarthur Farm Pty Ltd (Receivers and Managers Appointed) v Warneet Super Pty Ltd [2024] NSWSC 535 Hearing dates: 30 April 2024 Date of orders: 7 May 2024 Decision date: 07 May 2024 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: Summons dismissed. Catchwords: CONTRACTS – Construction – Written loan agreement (agreement) under which the First Defendant (Lender) lent the First Plaintiff (Borrower) a large sum of money to enable the First Plaintiff to complete the acquisition of real property (the Property) which it was intended to on-sell at a profit in which they would share – Where on one scenario contemplated by the agreement (which scenario arose) profit would be determined on the basis of market value defined in the agreement as the market value of the Property determined by a licenced real estate valuer selected by the Lender – Whether the First Defendant selected a valuer – Whether the First Defendant was put to selecting one, and only one, valuer in advance of the valuer determining market value and if so whether it was for that valuer, and that valuer alone, to determine market value – Whether the determination could be oral – Whether an unfinalised valuation at a date different to the one required by the agreement can constitute a determination under it – Where receivers appointed by the First Defendant to the First Plaintiff sought to retain a licenced valuer to make a determination under the agreement and the valuer refused a retainer in terms requiring him to carry out the exercise required by the agreement – Where his retainer was terminated before completion of a valuation – HELD the First Defendant did not select a valuer – The agreement did not require a selection to be in advance of the bringing into existence of a valuation – The First Defendant could select a valuer who had made a determination – A determination had to be in writing – The unfinalised valuation could not constitute a determination under the agreement Cases Cited: Karenlee Nominees Pty Ltd v Gollin & Co Ltd [1983] 1 VR 657 Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Woolworths Ltd v Merost Pty Ltd (1988) 14 NSWLR 300 Holt v Cox (1994) 15 ACSR 313 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Category: Principal judgment Parties: Macarthur Farm Pty Ltd ACN 667 935 971 (Receivers and Managers Appointed) (First Plaintiff)