Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rose v Manno Kingsway Pty Limited as trustee for the Manno Kingsway Unit Trust [2025] NSWCA 23 Hearing dates: 19 February 2025 Date of orders: 27 February 2025 Decision date: 27 February 2025 Before: Bell CJ at [1]; Mitchelmore JA at [82]; Adamson JA at [83]. Decision: Appeal dismissed with costs. Catchwords: CONTRACTS – Formation – Intention to create legal relations – "Fourth category" of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 – Whether emails exchanged prior to formal loan agreement established an intention immediately to be bound CONTRACTS – Formation – Consideration – Past consideration – Where advance made nine days prior to execution of formal loan agreement – Whether loan agreement supported by consideration – Whether earlier advance constituted past consideration in respect of the formal loan agreement ESTOPPEL – Conventional estoppel – Where purported concession made in cross-examination – Where purported concession conflicted with contemporaneous documents – Whether purported concession provided a basis for a conventional estoppel claim Cases Cited: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Amalgamated Investment & Property Co Ltd v Texas Commercial International Bank Ltd (in liq) [1982] QB 84; [1981] WLR 565 Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267; [1999] NSWSC 274 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88 Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Classic Maritime Inc v Lion Diversified Holdings Berhad [2010] 1 Lloyd's Rep 59; [2009] EWHC 1142 (Comm) Equus Corp Pty Ltd v Glengallan Investments Pty Ltd [2006] QCA 194 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675 Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; [1907] HCA 38 Hunt v Optima (Cambridge) Ltd [2014] EWCA Civ 714 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Johnson Matthey Ltd v A C Rochester Overseas Corporation (1990) 23 NSWLR 190 Kennedy v Broun (1863) 13 CB (NS) 677; 143 ER 268 Kestell v Davey (No 3) [2023] WASC 289 Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126 Lampleigh v Braithwaite (1615) Hob 105; 80 ER 255 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Lictor Anstalt v MIR Steel UK Ltd [2014] EWHC 3316 (Ch) Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 Ma Hongjin v SCP Holdings Pte Ltd [2019] SGHC 277 Marsden v Barclays Bank plc [2016] 2 Lloyd's Rep 420; [2016] EWHC 1601 (QB) Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Moratic Pty Ltd v Gordon [2007] NSWSC 5 Pao On v Lau You Long [1980] AC 614 Re Casey's Patents; Stewart v Casey [1892] 1 Ch 104 Re Douglas; Ex parte Starkey (1987) 15 FCR 475; (1987) 75 ALR 97 Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486; [2012] VSCA 134 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 SAS Realty Developments v Kerr [2013] NSWCA 56 Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5 Thornton v Jenyns (1840) 1 M & G 166; 133 ER 291 Twenty Ninth Macorp Nominees Pty Ltd v Normal George [2017] VSC 136 Westminster City Council v Duke of Westminster [1991] 4 All ER 136 Texts Cited: E Peel, Treitel: The Law of Contract (13th ed, 2011, Street & Maxwell) H Beale, Chitty on Contracts (Vol 1, 35th ed, 2024, Street & Maxwell) JD Heydon, Heydon on Contract: The General Part (2019, Thomson Reuters) KR Handley, Estoppel by Conduct and Election (2006, Street & Maxwell) MJ Leeming, Common Law, Equity and Statute: A Complex Entangled System (2023, Federation Press) Category: Principal judgment Parties: Christopher Peter Rose (Appellant) Manno Kingsway Pty Limited ATF the Manno Kingsway Unit Trust (Respondent) Representation: Counsel: D Parish (Appellant) T Boyle (Respondent) Solicitors: Brown Ward King (Appellant) Dentons (Respondent) File Number(s): 2024/347150 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2024] NSWSC 1065 Date of Decision: 23 August 2024 Before: Campbell J File Number(s): 2023/120366 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Mr Rose (the Appellant) and Mr Manassen were property developers who had pursued various projects together since 2014, including one known as the Wavelength Project. On 26 November 2021, near the completion of the project, Mr Manassen informed the Appellant that he would be unlikely to obtain a profit in the Wavelength Project, and suggested that he could pay the Appellant $150,000, or that the Appellant could propose a loan that they could discuss. By email on 13 December 2021, Mr Manassen sought to "confirm" the details of his meeting with the Appellant that day, including that "[w]e will lend $1m to [the Appellant] by 24th Dec for 1 year at 5% subject to" various conditions. The Appellant confirmed the summary, but added the following day that Mr Manassen had forgotten to include a payment made by the Appellant in the sum of $315,000. On 24 January 2022, Manassen Holdings Pty Ltd, a company related to Manno Kingsway Pty Ltd (the Respondent), advanced a sum of $1,300,000 to the Appellant. Mr Manassen is the sole shareholder and director of both companies. On 2 February 2022, the Respondent and Appellant entered a loan agreement as lender and borrower respectively (the Loan Agreement). The loan amount was $1,300,000, at an interest rate of 3.85% per annum. The Appellant made ten monthly interest payments corresponding to a loan amount of $1,300,000 with 3.85% interest. By email dated 27 December 2022, Mr Manassen contacted the Appellant concerning his intention to repay "the $1.3m loan". The Appellant stated that he would provide an answer by 10 January 2023, but he failed to do so, and did not respond to further enquiries from Mr Manassen after that date. The Respondent commenced proceedings against the Appellant in debt based on the Loan Agreement after issuing a formal letter of demand. The primary judge held that: (i) the emails exchanged on 13 December 2021 created a binding and enforceable agreement (the Email Agreement); (ii) the Loan Agreement was binding as the advance constituted good consideration even though made in advance of execution of the Loan Agreement; and (iii) rejected the Appellant's defences of promissory and conventional estoppel. The Appellant challenged each of these findings on appeal. The Court (Bell CJ, Mitchelmore JA and Adamson JA agreeing) held, dismissing the appeal: 1. The primary judge erred in finding that the Email Agreement formed a binding contract and fell within the "fourth category" of Masters v Cameron. The email exchanges of 13 December 2021 did not objectively manifest an intention to be immediately bound because Mr Manassen's email: (i) did not specify the identity of the contracting parties or date upon which moneys would be advanced; (ii) prefaced the description of the terms of the agreement with "[j]ust confirming our meeting"; (iii) none of the matters "confirmed" by the email was in fact implemented; and (iv) the Appellant failed to complain about the non-advance of $1,000,000 by 24 December 2021: [41]-[49] (Bell CJ); [82] (Mitchelmore JA); [83] (Adamson JA). Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72; Australian Broadcasting Company v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61, applied. 1. The primary judge did not err in finding that the advance constituted good consideration for the Loan Agreement even though made prior to execution of the Loan Agreement. The primary judge correctly characterised the advance, execution of the Loan Agreement and provision of Deeds of Release as one transaction. The advance was requested by the Appellant, formal executed documentation identified the same amount of the advance, no other pre-existing obligation was discharged by the advance and it was common ground that it was not a gift: [50]-[66] (Bell CJ); [82] (Mitchelmore JA); [83] (Adamson JA). Twenty Ninth Macorp Nominees Pty Ltd v Normal George [2017] VSC 136; Kestell v Davey (No 3) [2023] WASC 289; Pao On v Lau You Long [1980] AC 614, applied. Thornton v Jenyns (1840) 1 M & G 166; 133 ER 291; Classic Maritime Inc v Lion Diversified Holdings Berhad [2010] 1 Lloyd's Rep 59; [2009] EWHC 1142 (Comm); Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675; Marsden v Barclays Bank plc [2016] 2 Lloyd's Rep 420; [2016] EWHC 1601 (QB); Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332; Re Casey's Patents; Stewart v Casey [1892] 1 Ch 104; Lampleigh v Braithwaite (1615) Hob 105; 80 ER 255; Re Douglas; Ex parte Starkey (1987) 15 FCR 475; Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271, cited. 1. The primary judge did not err in rejecting the Appellant's defence of conventional estoppel, as Mr Manassen's purported concession in cross-examination did not establish "mutually manifest conduct by the parties". While his Honour erred in stating that the Appellant's promissory estoppel claim had been abandoned, the Court rejected the claim on the basis that there was neither a communicated extra-contractual promise nor evidence of reliance: [67]-[80] (Bell CJ); [82] (Mitchelmore JA); [83] (Adamson JA). Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65; Johnson Matthey Ltd v A C Rochester Overseas Corporation (1990) 23 NSWLR 190; Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126, applied. JUDGMENT 1. BELL CJ: Five matters are clear about this contractual dispute which comes to this Court by way of an appeal from the decision of Campbell J (the primary judge) of the Common Law Division of the Supreme Court: Manno Kingsway Pty Ltd as trustee for the Manno Kingsway Unit Trust v Rose [2024] NSWSC 1065 (primary judgment or PJ). 2. First, the parties entered into a written loan agreement on 2 February 2022 by which the Respondent agreed to advance to the Appellant the sum of $1.3 million for a term of 12 months at an interest rate of 3.85% per annum (the Loan Agreement). 3. Second, the loan was subject to the provision of executed copies of Deeds of Release relating to the parties' engagement with each other in respect of a development project being undertaken by them at Geralle Street, Cronulla and known as the Wavelength Project. 4. Third, the Deeds of Release as contemplated by the Loan Agreement were executed on 2 February 2022. 5. Fourth, the Appellant paid ten monthly instalments of interest in accordance with the contractual provisions in the Loan Agreement, calculated on a principal amount of $1.3 million and interest rate of 3.85%: PJ [38]-[39]. 6. Fifth, the Respondent refused to repay the principal amount at the expiry of the term of the Loan Agreement notwithstanding demands for repayment. 7. So recited, one might legitimately wonder how this matter came to court. The answer to that question lies in the fact that $1.3 million (the amount specified in the Loan Agreement) was advanced to the Appellant on 24 January 2022 (nine days before execution of the Loan Agreement) and this advance was made by Manassen Holdings Pty Ltd, a party related to the Respondent, Manno Kingsway Pty Ltd. The Appellant admitted receiving that sum but denied that, upon a proper construction of the Loan Agreement, any money was owing and "by reason of that fact", denied that the Loan Agreement was supported by consideration. It submitted that, because the advance of $1.3 million chronologically predated execution of the Loan Agreement, it was "past consideration" which was incapable of supplying the "quid pro quo" to support the contractual bargain documented in the Loan Agreement. This argument was rejected by the primary judge but is re-agitated on appeal. 8. By a Further Amended Statement of Claim (the FASOC), dated 30 January 2024 which was the first day of the hearing, the Respondent amended its claim to plead, in addition to the claim under the Loan Agreement, that the parties reached an agreement "in respect of a loan on or around 14 December 2021 for a term of one year". The agreement was said to be in writing, recorded in two emails exchanged on 13 December and a further email of 14 December 2021. 9. The first of these emails was sent on 13 December 2021 at 12.45pm by Mr Robert (Roy) Manassen, the principal of the Respondent, to Mr Christopher (Chris) Rose (the Appellant) and summarised a meeting held with Mr Rose that day. The email read as follows: "Chris, Just confirming our meeting. We will lend $1m to CR by 24th Dec for 1 year at 5% subject to: No litigation against any Manassen entities from Manny/other. An Orville guarantee and a personal PG from yourself. We will agree to PM/DM fees until June 2022 unless all units are sold before and then fees will cease. Half the $1m will go to Vince. After a 12% interest coupon is calculated from Haley the 50% profit share will be determined. We lost SOPA case…I'll contemplate whether to appeal. Not discussed and [subject to appeal] not sure if this SOPA loss has been added to pref units or not but I guess it will need to be if it hasn't. Agreed that 407, 704 and 803 will all settle on the 28th January but that these are now time of the essence contracts. Please confirm agreement." Mr Rose replied to Mr Manassen's email two minutes later, stating "[c]onfirmed Roy". 1. By email dated 14 December 2021, Mr Rose added that Mr Manassen had "[f]orgot to add the return of the deposit on 801", which was apparently a reference to a payment in the sum of $315,000 made personally by Mr Rose in relation to the Wavelength Project: PJ [36]. No response to this email was pointed to or relied upon. 2. The primary judge found that the exchange of emails on 13 December 2021 evinced an intention by the parties immediately to be bound and resulted in a binding enforceable agreement which it is convenient to refer to in these reasons as the Email Agreement. His Honour found that the Email Agreement fell within what has become known as the fourth category of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 (Masters v Cameron) although such a category is not in fact mentioned in that celebrated case: see further at [41] below. 3. The FASOC, dated 30 January 2024, described the Loan Agreement of 2 February 2022 as a "formal" loan agreement, presumably by way of contrast with the alleged Email Agreement. The pleading did not allege what the relationship if any was between the two agreements. In particular it was silent as to whether one was a variation of the other or superseded it. 4. His Honour went on to hold that, even if his characterisation of the 13 December exchange of emails were wrong and no binding agreement was reached by that exchange, it remained his view that the Loan Agreement was nevertheless binding, "applying a functional test by treating the advance and entry into the Loan Agreement as forming part of one single transaction": PJ [43]. The primary judge evidently took the language of "a functional test" from the decision of Almond J in Twenty Ninth Macorp Nominees Pty Ltd v Normal George [2017] VSC 136 at [231]-[232] (Macorp). His Honour also made reference in this context to Kestell v Davey (No 3) [2023] WASC 289 at [453] (Kestell). According to this line of authority, the fact that a payment may be made chronologically prior to the execution of terms is not decisive, and does not necessarily mean that a prior advance acquires the status of "past consideration" for the purposes of assessing whether a subsequent promise (such as those contained in the Loan Agreement) binds the recipient of the early advance. 5. The Appellant also advanced defences of promissory and conventional estoppel which the primary judge rejected: see PJ [46]-[54]. According to the primary judge, only conventional estoppel was "finally pressed": PJ [46]. Mr Rose relied on the fact that, in cross-examination, Mr Manassen conceded that he knew, at the time of entering the Loan Agreement, that Mr Rose understood that the advance would be reconciled once the Wavelength Project had completed: PJ [46]. The following exchange occurred during Mr Manassen's cross-examination: "Q. And you knew, when you asked [Mr Rose] to sign [the Loan Agreement], that the $1.3 million had already been advanced, that being on 24 January. That's correct, isn't it? A. Yes. Q. You knew when you asked him to sign this agreement that he understood that the true nature of the agreement between you and him was that the money advanced on 24 January would be reconciled after the completion of the Wavelength project. That's right, isn't it? A. Yes. Q. That's something you understood as well? That must follow, mustn't it? A. Yes." 1. The primary judge held that, despite his "apparent concession", Mr Rose failed to establish that "Mr Manassen had in fact adopted Mr Rose's characterisation of the advance as the conventional basis of their relationship so as to amount to conventional estoppel": PJ [48]. His Honour also held that Mr Rose failed to establish "the other elements" of conventional estoppel as outlined in Moratic Pty Ltd v Gordon [2007] NSWSC 5 at [32] (Moratic). Rather, the primary judge found that it was Mr Rose who resiled from the "mutually adopted assumption of the Loan Agreement operating as a loan agreement", because (PJ [49]): "First, it was Mr Rose who initially requested a loan from Mr Manassen on 9 December 2021... Secondly, Mr Manassen over the course of his dealings with Mr Rose never indicated the advance was a gift, but consistently characterised the advance as a personal loan to Mr Rose, separate from the other moneys invested by him and his entities… Thirdly, it is Mr Rose's own evidence that Mr Manassen offered to provide him with a "short term loan" to "tide him over" merely some hours before making the offer contained in Mr Manassen's email of 13 December 2021..." In turn, without evidence to the contrary, the primary judge found that he could not accept that there had been a "fundamental change to the nature of the advance in that short period of time either between offer and acceptance or over the period from 13 December 2021 to 24 January 2022 when the funds were advanced": PJ [49]. 1. The primary judge also rejected Mr Rose's conventional estoppel arguments having regard to the email exchanges between Mr Manassen and Mr Rose on 27 December 2022 and 10 and 12 January 2023, as extracted below at [36]-[38]. The primary judge held that Mr Manassen's reference in the 27 December 2022 email to "repayment of the $1.3m loan", coupled with Mr Rose's failure to correct that characterisation, indicated that the parties "proceeded on the basis of the advance operating as a loan due and payable in twelve months": PJ [51]. His Honour determined that the email exchanges "cast[ed] doubt as to whether [Mr Manassen's] concession, if such it was, was properly made", and that the contemporaneous documents should have primacy over the evidence given in cross examination by Mr Manassen: PJ [51]-[53]. 2. In turn, the primary judge held that the Respondent "proved its case in debt" against the Appellant for the sum of $1.3 million plus interest under the Loan Agreement: PJ [54]-[55]. Notice of Appeal 1. The Appellant raises the following eight grounds of appeal, noting that grounds 1(b) and 2 were not pressed: "1 The primary judge erred in finding that a liability to repay the respondent arose from a contract that was created between the parties on 13 December 2021 (the purported 13 December 2021 agreement) in circumstances where: (a) it was not open to find that the parties intended to be immediately bound. (b) to the extent there was an agreement between the parties on 13 December 2021, the terms were not sufficiently certain; (c) to the extent there was an agreement between the parties on 13 December 2021, neither party performed its terms. 2 In the alternative to ground 1, if the parties did intend to be immediately bound to terms with sufficient certainty, the primary judge erred in failing to find that it was a term of the purported 13 December 2021 agreement that any money advanced would not be payable until the reconciliation of the Wavelength Project. 3 The primary judge erred in finding that the purported 13 December 2021 agreement was varied between that time and 2 February 2022 written loan agreement in circumstances where: (a) it was not open for the primary judge to infer on the available evidence that such variations took place; and (b) there was no finding of the terms of the variations or the consideration that supported them. 4 The primary judge erred in holding that the purported 13 December 2021 agreement came within the fourth category of Masters v Cameron and that the 2 February 2022 written loan agreement was a formalisation of the purported 13 December 2021 agreement. 5 The primary judge erred in holding that, if the 2 February 2022 written loan agreement was not a formalisation of the purported 13 December 2021, it was nevertheless supported by consideration passing from the respondent to the appellant in the form of the advance made on 24 January 2022. 6 The primary judge erred in finding that there was no evidence that the parties adopted the appellant's characterisation of the advance (such that it be repayable after reconciliation at the completion of the Wavelength Project) as the conventional basis of the relationship. 7 The primary judge erred in: (a) failing to find contrary to compelling evidence that there was a mutual understanding that the 2 February 2022 written loan agreement repayment term would not be strictly enforced and that instead the money advanced on 24 January 2022 would be repayable upon reconciliation of the Wavelength Project; and (b) holding that that the respondent was not estopped from resiling from the said mutual understanding. 8 The primary judge erred in failing to consider the appellant's promissory estoppel contentions in circumstances where it appears his Honour misconstrued the contention as having been abandoned when it was not." 1. Grounds 1-4 relate to the primary judge's finding upholding the existence of the Email Agreement as establishing an enforceable contract. As will appear, there is substance in that challenge. To succeed in his appeal, however, the Appellant must also succeed on Ground 5 relating to the Loan Agreement, or Grounds 6-8 dealing with estoppel. This Ground 5 essentially turns upon whether the advance of $1.3 million should be treated as providing consideration for the Loan Agreement even though the advance was made some 9 days prior to its execution. As will appear, this ground of appeal should, in my opinion, be rejected. Grounds 6-7 concern the Appellant's conventional estoppel arguments, and ground 8 his promissory estoppel argument. Those grounds should also be rejected for the reasons given at [67]-[80] below. 2. Before embarking upon a consideration of these grounds, it is necessary to set out some further detail by way of background. What follows is principally adopted from the primary judgment, as the facts were not in dispute in any material respect. Further background 1. Mr Rose was an experienced property developer, who had undertaken developments since the mid-1990s: PJ [2]. Mr Manassen was the sole director and shareholder of Manno Kingsway, and is a company director of various entities known as the "Manassen Group": PJ [2]. 2. Mr Rose and Mr Manassen had pursued numerous development projects in New South Wales since 2014. One such project, known as the Wavelength Project, involved the construction of apartment and commercial premises in Cronulla: PJ [2]. Mr Rose and Mr Manassen engaged in projects according to a developer-investor relationship, where Mr Rose would identify sites suitable for development, procure a feasibility study, and, if feasible, would negotiate option agreements with landowners before bringing the opportunity to Mr Manassen's attention for the purpose of obtaining funding: PJ [3]. Mr Manassen would subsequently conduct his own analysis of the project's prospects, and determine whether to invest and how such investments should be structured: PJ [3]. 3. On 15 December 2016, Mr Rose and Mr Manassen entered into an investor's agreement (through their respective corporate entities) to establish the funding structure for the Wavelength Project (Investors Agreement). The final amended deed for the Investors Agreement was executed on 26 November 2019. The primary judge summarised the Investors Agreement and the pertinent facts relating to the agreement at PJ [4] as follows: "(1) the acquisition and development of the project was to be undertaken by the newly incorporated special purpose vehicle (SPV), Iridium Developments Pty Ltd ("Iridium") as trustee for Iridium Development Trust ("Iridium Trust"); (2) Mr Rose would be Iridium's sole director; (3) Mr Rose and Mr Manassen would each hold 50% shares in Iridium and 50% of the ordinary units in the Iridium Trust; (4) Mr Manassen's investments would be preference equity in that the preference units in Iridium Trust subscribed for and issued to Mr Manassen's entity would be paid ahead of ordinary units; (5) Mr Manassen as a preference unit holder would receive 30% per annum return on his preference units. That is, upon completion of the project he would have a priority return on his initial investment plus 30% per annum, compounding up to the date for distribution of profits; (6) the remaining profits would be distributed among the ordinary unit holders on a 50/50 basis; and (7) Mr Manassen would fund the acquisition of the land, while Iridium would obtain funding from a third-party lender for construction costs." 1. On the same day, Iridium entered into a development management agreement with QPS Developments Pty Ltd (now FQP Pty Ltd (FQP)) – an entity controlled by Mr Rose: PJ [5]. This agreement established that FQP would oversee the delivery of the Wavelength Project as the project manager for 24 months for a management fee of $14,583 (plus GST) per month: PJ [5]. 2. The Wavelength Project was subject to two delays. The first delay was due to lengthy negotiations with third party lenders for construction costs. Despite Iridium acquiring the land in mid-2017 and obtaining development consent in February 2018, the funding terms with a third party lender were only finalised in November 2019: PJ [6]. The second delay related to various COVID-19 related public health orders which applied from March 2020 to October 2021. In turn, the construction phase of the Wavelength Project neared completion in November 2021: PJ [6]. As the Wavelength Project neared completion, Mr Manassen and Mr Rose held discussions in November and December 2021 to reassess their financial position and potential returns from the project: PJ [7]. 3. By email dated 26 November 2021, Mr Manassen set out his financial position to Mr Rose (following their meeting two days earlier). Mr Manassen explained that Mr Rose was unlikely to obtain a profit from the Wavelength Project following the payment of Mr Manassen's preference shares because the internal rate of return of the project was 10% due to it not progressing as well as anticipated: PJ [8]. Mr Manassen suggested that: (i) Mr Manassen could pay Mr Rose $150,000, to be split with the external consultant of the Wavelength Project; or (ii) Mr Rose could "[p]ut a proposal to [Mr Manassen] for a loan that [they] can discuss". The primary judge observed that Mr Manassen's proposals appeared to be prompted by Mr Rose's comment during their meeting that "$1m would mean more to me today than $10m in 3 years", and Mr Manassen's impression that Mr Rose was "totally at wits end… [a]lso maybe personally strapped for cash": PJ [8]. 4. By email dated 29 November 2021, Mr Rose expressed to Mr Manassen that he was "extremely disappointed and offended" by Mr Manassen's email of 26 November 2021: PJ [9]. Mr Rose attributed the Wavelength Project's first set of delays (see [25] above) to Mr Manassen's insistence on pursuing a particular lender while ignoring the term sheets of others: PJ [9]. Mr Rose also expressed his grievance with the fact that the delays had deprived him of cashflow from returns that would otherwise have materialised, while such delays benefited Mr Manassen due to the accrual of his preferences: PJ [9]. Mr Rose explained that he "cannot have a situation where I walk away from such a successful project with nothing": PJ [9]. This was especially so, the primary judge concluded, "in circumstances where he had taken on very heavy financial burdens including the need to personal[ly] guarantee the construction loan, and having to fund a prospective purchaser who had yet to pay her deposit in order to meet the qualifying pre-sales level required by the third-party lender": PJ [9]. 5. By email dated 9 December 2021, Mr Rose proposed for "Manassen Group to provide a $1 million working capital loan to FQP for 24 months at 5% pa (these funds are to be advanced prior to 24th December 2021)". These, alongside other terms expressed in the email, were said by Mr Rose to be "something we can both move forward on". 6. By email on the same day, Mr Manassen replied, querying "[h]ow is the $1m repaid in 24 months and what security is available?". 7. On 13 December 2021, Mr Rose and Mr Manassen met in person, and, according to Mr Rose's evidence, Mr Manassen said words to the effect of "I am happy to give you a short term loan to tide you over…": PJ [11]. On the same day, the emails which have been reproduced at [9] above were exchanged, with a further email being sent on 14 December: see [10] above. 8. By email dated 24 January 2022, Ms Hayley Peters (Company Accountant for Manassen Holdings Pty Ltd) made a request to ANZ to transfer $1.3 million from Manassen Holdings' ANZ bank account to Mr Rose. That sum was advanced on the same day. 9. On 2 February 2022, Manno Kingsway and Mr Rose entered into the Loan Agreement as lender and borrower respectively. The Loan Agreement's recital provided: "IT IS AGREED in consideration of the Lender agreeing to provide financial accommodation at the request of the Borrower and the Guarantor that the parties are bound by the terms and conditions of this document." 1. Under the Loan Agreement, the loan amount was $1.3 million at an interest rate of 3.85% per annum, and there was a termination date of 12 months later, 3 February 2023. The Loan Agreement was secured by: (i) a guarantee provided by the Guarantor, being Orville Properties Pty Ltd (as trustee for the QPS Holdings Trust); and (ii) General Security Agreements over the assets of the Guarantor. 2. Clause 2 of the Loan Agreement provided that the "Lender will lend the Loan Amount to the Borrower subject to" (emphasis added) three conditions, including completion of the Lender's due diligence, provision of executed copies of the Security and Guarantee, and provision of executed copies of "Release Deeds". 3. Interest payments were made as follows (PJ [38]): Date Amount 1. 22 February 2022 $ 4,799.31 2. 23 March 2022 $ 4,250.82 3. 28 April 2022 $ 4,113.70 4. 20 May 2022 $ 4,250.82 5. 21 June 2022 $ 4,113.71 6. 21 July 2022 $ 4,250.82 7. 22 August 2022 $ 4,250.82 8. 12 October 2022 $ 4,113.70 9. 22 November 2022 $ 4,113.70 10. 23 December 2022 $ 4,250.82 Total $42,508.22 1. By email dated 27 December 2022 at 3.06pm, Mr Manassen contacted Mr Rose concerning Mr Rose's "intentions regarding repayment of the $1.3m loan". 2. By email on the same day at 7.42pm, Mr Rose responded to Mr Manassen, saying that he would provide an answer by 10 January 2023. 3. By email dated 10 January 2023 at 2.39pm, Mr Manassen sought Mr Rose's advice concerning his repayment plans. This email was followed by a further email on 12 January 2023, whereby Mr Manassen again sought to understand Mr Rose's plan to make repayments. 4. By email dated 6 February 2023, Ms Bianca Williamson (representing Manno Kingsway) attached a letter addressed to Mr Rose notifying him of his default under the Loan Agreement. The letter advised Mr Rose that he could remedy the default by 7 March 2023. 5. By email dated 8 March 2023, Ms Williamson attached a letter of demand addressed to Mr Rose for the sum of $1,315,213.29. The letter advised Mr Rose that Manno Kingsway may commence proceedings against him if the total amount owing was not paid by 15 March 2023. The Email Agreement – grounds 1-4 1. As already noted, the primary judge held that the exchange of emails on 13 December 2021 (set out at [9] above) gave rise to a binding agreement and fell within what has become known as the fourth category of Masters v Cameron. As explained by JD Heydon in Heydon on Contract: The General Part (2019, Thomson Reuters) at [3.110] (Heydon on Contract): "Though its origins are older, modern recognition of the fourth class began with Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628; see also Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 at 494–495; Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101; [2000] WASCA 27 at [24]–[25]. There McLelland J quoted the dicta of Knox CJ, Rich and Dixon JJ in Sinclair, Scott & Co v Naughton (1929) 43 CLR 310; [1929] HCA 34 at 317, relying on Love and Stewart Ltd v S Instone & Co (Ltd) (1917) 33 TLR 475 at 476. They identified a class 'in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms'. The reasoning of McLelland J was upheld by the New South Wales Court of Appeal on appeal: GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635–636. There is a clear distinction between the second class and the fourth class. The second class comprises cases where the parties "intend no departure from or addition to that which their agreed terms express or imply". The fourth class comprises cases where the parties are "expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms". An intention not to do something is different from an expectation that one will do it." 1. The primary judge's conclusion that the Email Agreement fell within the fourth class of Masters v Cameron necessarily entailed the conclusion that the parties, by their conduct, manifested an intention immediately to be bound and create contractual relations. Such an issue is to be determined consistently with the objective theory of contract: Masters v Cameron; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548‑549. As the plurality said in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25], the word "intention" in this context is used in the same sense as in other contractual contexts, namely it: "describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties." 1. As a consideration as to whether the parties intended immediately to be bound, a matter going to the existence (as opposed to the terms) of a contract, subsequent conduct of the parties may also be taken into account: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25]-[26], citing Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77; [1907] HCA 38; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668, 669, 672; [1908] HCA 88. 2. I respectfully disagree with the primary judge's conclusion that the exchange of emails on 13 December 2021 objectively manifested an intention to be immediately bound. This is so for a number of reasons. 3. First, when regard is had to the entirety of Mr Manassen's email of 13 December, as opposed to the first four lines of that email to which the primary judge paid particular regard, there were a number of matters which were still to be determined between the parties (including the precise identity of the contracting parties, at least on Mr Manassen's side). These matters included the terms of the two guarantees contemplated in the 13 December email, the actual date upon which any moneys would be advanced and what was meant by the entry "No litigation against any Manassen entities from Manny/other." Who "Manny" was referring to was not obvious, nor was it known who the "other" being referred to was. Moreover, it was not evident what was meant by "No litigation …": it may have meant a moratorium on litigation for a period, such as the duration of the Wavelength Project, or no litigation indefinitely, or an agreement to enter into a deed of release or compromise. These uncertainties militated against a conclusion that the parties intended immediately to be bound and, by the exchange of emails, to enter into immediate contractual relations. This was further reinforced by the reference to the potentiality of an appeal in relation to a Building and Construction Industry Security of Payment Act 1999 (NSW) claim, success in which may have affected the commerciality of any arrangements. 4. Secondly, Mr Manassen's email of 13 December 2021 is "book-ended" by the expressions "[j]ust confirming our meeting" and "[p]lease confirm agreement". It will be recalled that Mr Manassen and Mr Rose had met together earlier on 13 December 2021 before the exchange of emails. The expression "[j]ust confirming our meeting" is ambiguous: it may simply have been a way of seeking to confirm what was discussed at the meeting. The closing statement "[p]lease confirm agreement" when seen in this context, is capable of being interpreted as seeking confirmation from Mr Rose that he agreed with Mr Manassen's summary of the points discussed at the meeting as opposed to something far more fundamental, namely an intention immediately to be bound by the contents in Mr Manassen's email. In context, the former interpretation is to be preferred. 5. Thirdly, none of the matters purportedly "confirmed" as having been contractually agreed was in fact implemented: thus, no monies were advanced prior to 24 December 2021; no interest of 5% was charged or paid; and when moneys were advanced on 24 January 2022, they were in a different sum to the $1 million referred to in Mr Manassen's email. 6. Fourthly, no complaint was raised by Mr Rose shortly after 24 December 2021 as to the non-advance of the $1 million referred to in the 13 December 2021 email, another matter that militates against the primary judge's conclusion. Had the parties in truth intended immediately to be bound by the exchange of emails on 13 December 2021, one would have expected such a complaint, especially given the tone of the earlier correspondence between the two principals that had pre-dated their meeting of 13 December 2021. 7. For these reasons, I would uphold the Appellant's challenge to the primary judge's conclusion in relation to the Email Agreement. As explained above, however, it does not follow that the appeal must succeed, given his Honour's conclusion in relation to the Loan Agreement and the Appellant's "past consideration" argument. It is to this aspect of the appeal that these reasons now turn. The Loan Agreement and past consideration – ground 5 1. There was no contest that the Loan Agreement was executed by the Appellant nor that, after its entry, interest had been paid at the rate specified in it, as detailed in the Table at [35] above. 2. Significantly, the first of those interest payments encompassed not only monthly interest but an amount calculated at the contractual rate for the 9 day period between the advance of $1.3 million on 24 January 2022 and the execution of the Loan Agreement. 3. This conduct was consistent with the Appellant and the Respondent treating the advance and the Loan Agreement as part and parcel of a single transaction. The Appellant, however, by ground 5, challenges this characterisation and the application by the primary judge of the decisions of the Victorian and Western Australian Supreme Courts in Macorp and Kestell respectively to the facts of the present case. 4. At one point in his submissions, Mr Parish submitted that these cases and the principle for which they stand do not represent the law in New South Wales. So much cannot be accepted. First, they are decisions relating to the common law of contract, and there is only one common law of Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563-4; [1997] HCA 25; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 at [51]-[53]; see also MJ Leeming, Common Law, Equity and Statute: A Complex Entangled System (2023, Federation Press) ch 6. Secondly, it was accepted in SAS Realty Developments v Kerr [2013] NSWCA 56 at [66] (SAS Realty) that, in certain circumstances, "an advance payment would be capable of constituting good consideration." 5. In Macorp, Almond J said (at [231]-[232]): "In my view, a functional test should be applied in this case. I have already found that a head agreement was reached... It is plain that this head agreement, the advance of funds by [the lender] on 2 May 2012 (pursuant to [the borrower's] urgent request), the documentation of the transaction on the same day and the execution of the transaction documents by 6 May 2012 form part of a single transaction, with the execution of the transaction documents reflecting the fact of the earlier agreement." In Kestell, Smith J said (at [453]): "Although it is established that the time of assessment with respect to which consideration is to be assessed is the time at which the contract is made, consideration will not be past consideration even if it was provided before the making of the promise for which it is alleged to be consideration, where the making of the promise and the provision of the consideration are part of the same transaction. When, by reason of their genesis, background, negotiation and terms, multiple agreements can in substance be viewed as part of a single transaction, then the courts are not bound to apply a strictly chronological test, such that, where the giving of consideration and the making of the promise are substantially one transaction, the exact order of events is not decisive." 1. These authorities form part of a long line of decisions to similar effect, all of which recognise that "chronology" is not decisive: see, for example: Thornton v Jenyns (1840) 1 M & G 166 at 188-189; 133 ER 291; Westminster City Council v Duke of Westminster [1991] 4 All ER 136 at 145; Classic Maritime Inc v Lion Diversified Holdings Berhad [2010] 1 Lloyd's Rep 59; [2009] EWHC 1142 (Comm) at [45]-[46]; Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675 at [173]-[174]; Lictor Anstalt v MIR Steel UK Ltd [2014] EWHC 3316 (Ch) at [223]; Hunt v Optima (Cambridge) Ltd [2014] EWCA Civ 714 at [80]-[81]; Marsden v Barclays Bank plc [2016] 2 Lloyd's Rep 420; [2016] EWHC 1601 (QB) at [30]-[31]. See also Heydon on Contract at [5.240]; H Beale, Chitty on Contracts (Vol 1, 35th ed, 2024, Street & Maxwell) at [6-030]; E Peel, Treitel: The Law of Contract (13th ed, 2011, Street & Maxwell) at [3-018]. 2. In Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332 at [93], in turn cited in Ma Hongjin v SCP Holdings Pte Ltd [2019] SGHC 277 at [78], Andrew Phang JA observed that: "[T]he courts look to the substance rather than the form. Hence, what looks at first blush like past consideration will still pass legal muster if there is, in effect, a single (contemporaneous) transaction (the common understanding of the parties being that consideration would indeed be furnished at the time the promisor made his or her promise to the promisee). This was established as far back as the 1615 English decision of Lampleigh v Braithwait (1615) Hob 105; 80 ER 255 and, whilst often referred to as an exception to the principle, is not really an exception for (as just stated) its application results in what is, in substance, a single transaction to begin with…" 1. In my view, the primary judge did not err in treating the advance as part of a single functional transaction. It is plain that it was requested by the Appellant and, in short compass, formal documentation was executed identifying the very amount of the advance and the interest payable on it. The advance and the execution of the Loan Agreement and the provision of Deeds of Release in substance amounted to one transaction. 2. This was not a case, moreover, where there was some other earlier transaction or obligation on the part of the Respondent which was arguably discharged by the advance of the $1.3 million on 24 January 2022: cf SAS Realty. In this context, it is to be noted that the premise of this aspect of the Appellant's argument was that no agreement was formed by the exchange of emails of 13 December 2021. That raised the question of what the advance of $1.3 million was referable to if not the Loan Agreement that was executed shortly thereafter and by reference to which the Respondent calculated interest payable and the Appellant paid such interest. On the Appellant's case, the advance was not in fact consideration for anything, but the Appellant properly accepted that the advance was not gratuitous. 3. This observation reflects the Respondent's submission, which I accept, namely that: "the references to past consideration [in the case law] are not to simply chronologically anterior matters. The cases in which such issues arise are ones where there are multiple agreements, such that the consideration which is given in the first 'transaction' cannot sustain a second contract. It parallels the observation of Mason J in Wigan v Edwards (1974) 1 ALR 497 that a promise to perform an existing contractual duty or obligation is not consideration and also what Ward JA (as her Honour was) stated in SAS Realty Developments at [70] by reference to Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, namely that fresh consideration is necessary to make valid an agreement which purports to vary another contractual agreement. It follows … that the reliance on notions of past consideration in the present case were inapposite." 1. As the Respondent submitted, there was, on the Appellant's case, no relevant counter promise from him which served to render the payment made on 24 January 2022 consideration for anything, still less past consideration. The case was closely analogous to Macorp, as the primary judge held. 2. The primary judge also made reference to the Privy Council's decision in Pao On v Lau You Long [1980] AC 614 (Pao On) which is sometimes understood as creating an exception to the proposition that a promise may not be supported by past consideration. In that case, at 629, Lord Scarman said: "An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisors' request: the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit: and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance." 1. As has been explained in Heydon on Contract at [5.270] by reference to earlier cases, namely Re Casey's Patents; Stewart v Casey [1892] 1 Ch 104 at 115–116 (Casey); Kennedy v Broun (1863) 13 CB (NS) 677; 143 ER 268 at 740; and Lampleigh v Braithwaite (1615) Hob 105; 80 ER 255: "Assume that before a later promise is made, an act is done or a promise is given by a person who becomes the promisee of the later promise. Assume that act was done or promise given at the request of the later promisor. Assume that it was understood that payment for the earlier act or promise would be made. Assume that payment for the earlier act or promise, had that payment been promised in advance, would have been legally recoverable. In these circumstances the promisee can enforce the promise to pay for the act or promise despite the fact that the act or promise was "past" in the sense that it took place before the promise." 1. In Casey, Bowen LJ explained the principle at 115-116 as follows: "Even if it were true … that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now, the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in a subsequent document a promise to pay, that promise may be treated either as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered. So that here for past services there is ample justification for the promise to give the third share." 1. Pao On has been applied in Australia in the Federal Court in Re Douglas; Ex parte Starkey (1987) 15 FCR 475; (1987) 75 ALR 97 at 102, and in the Supreme Court of New South Wales by Santow J (as his Honour then was) in Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271 who said at 294: "An act done (here payment of the money) before the giving of a promise to confer a benefit (here the promise to transfer the shares) is valid consideration for that promise if the act has been done at the promisor's request (ie that of Bluebird Canada), the parties understood that the act was to be remunerated by the conferment of a benefit, and the conferment of the benefit would have been enforceable if it had been promised in advance". 1. These considerations were plainly satisfied on the facts of the present case, and the primary judge was correct to so hold. 2. Ground 5 of the appeal must be dismissed. Conventional estoppel – grounds 6-7 1. The Appellant, in his amended defence to the FASOC, pleaded that: "26 In or about December 2021, Manassen made the following representations to Rose: (a) he would no longer continue marketing units or apartments within the project for sale until market conditions improved and higher prices than that available at the time could be achieved for the remaining stock in the constructed project; (b) no accounting could therefore take place in relation to the rights and interests of the parties; (c) he would provide a short-term loan to Rose or the Rose interests to allow him or them to meet liabilities in relation to the Wavelength project and generally in anticipation of final accounting as to the respective returns of the parties. 27 In reliance on these representations, Rose executed the loan agreement. 28 There has been no accounting provided to Rose so as to allow him to determine his or his interests' entitlement to any return from the project." 1. In oral submissions at first instance, the estoppel argument was articulated in terms of both conventional estoppel and promissory estoppel (although not pleaded as such). 2. The manner in which the primary judge dealt with the conventional estoppel argument has been noted in short form at [14]-[16] above. It was more fully dealt with at PJ [46]-[54]. 3. Mr Parish, who appeared for the Appellant, candidly accepted that the (sophisticated) parties' entry into a formal written contract in the form of the Loan Agreement erected a formidable hurdle for the conventional estoppel argument. So much may be seen in the following exchange in the course of argument: "PARISH: …. we say that that payment or detriment was made without any thinking of Mr Manassen's part that it was going to be [a] formal repayable loan, but rather working capital for‑‑ BELL CJ: Well, why did the parties enter into a detailed formal written contract within days of the moneys being advanced? PARISH: Our position on that is that it was done because Mr Manassen asked for it to be done and it was entered into by Mr Rose because he understood that notwithstanding that in strict legal terms that it was a loan to be repaid within 12 months. His view of it was that it was money to be paid and applied towards the project and repayable at the conclusion of the project. BELL CJ: Do you accept that the loan agreement is inconsistent with that estoppel case? PARISH: Yes. BELL CJ: Doesn't that tell you something about your client's reliance on any representation or assumption? PARISH: Yes. We accept that the entering into the written loan agreement is a considerable hurdle to us, submitting to this Court that he relied on what he understood the state of affairs was to be when a strict legal agreement was entered into in due course." 1. Even on the rather exiguous pleading, it is plain that the conventional estoppel argument was not advanced on the basis of a course of dealing between the parties: cf Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 657-8; [1937] HCA 58 (Latham CJ); Amalgamated Investment & Property Co Ltd v Texas Commercial International Bank Ltd (in liq) [1982] QB 84 at 121; [1981] WLR 565. 2. In Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 at [196] (Ryledar), Tobias JA made reference to the Hon KR Handley's text Estoppel by Conduct and Election (2006, Street & Maxwell) at [8-001] in which the learned author described estoppel by convention as follows: "When parties make a statement of fact or of mixed fact and law the conventional basis of their transaction ... both are estopped from questioning its truth for the purpose of that transaction. Estoppels by convention can be created ad hoc, expressly, by a course of dealing, or by other acts and declarations. In such a case 'there must be some mutually manifest conduct by the parties' with the intention of effecting their legal relationship." 1. The passage from Mr Manassen's cross examination extracted at [14] above did not establish "mutually manifest conduct by the parties" (emphasis added) nor was it put that the Loan Agreement was induced by misrepresentation so as to open up the possibility of rescission under Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5. Moreover, the parties' entry into the Loan Agreement, in terms inconsistent with the conventional basis the Appellant needed to be established to found an estoppel, namely the adoption and conduct of a relationship on the basis of a mutual assumption (see Moratic at [32]), was destructive of the Appellant's argument and the sixth and seventh grounds of appeal. 2. In Ryledar at [210], Tobias JA made reference to the decision of McPherson JA in Equus Corp Pty Ltd v Glengallan Investments Pty Ltd [2006] QCA 194, where His Honour, referring to a conventional estoppel pleaded by the defendants in that case, said at [30] that they could not assert: "a 'common assumption' falling short of a contract that is at odds with the express contract to which they agreed and into which they afterwards entered in the knowledge of its terms. That conclusion is supported by the decision of McLelland J in Johnson Matthey..." 1. Johnson Matthey Ltd v A C Rochester Overseas Corporation (1990) 23 NSWLR 190 was a decision of McLelland J who put the matter plainly at 195-196: "In my view, reasons of principle and policy combine to exclude evidence of alleged estoppels by convention or any other agreements or understandings arising in the course of pre-contract negotiations which culminate in a written contract, except in proceedings for the rectification of the written contract, when the established requirement, as a condition of obtaining relief, of clear and convincing proof of a common intention of the parties not reflected in the written document provide the necessary degree of security of the written contract." 1. Although this was an evidentiary ruling, it proceeded upon a principled and logical basis resting on the inconsistency between the asserted existence of a common assumption overtaken by a formal written contract. See also Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267; [1999] NSWSC 274 [52]; Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486; [2012] VSCA 134 at [138]. 2. Appeal grounds 6 and 7 must be rejected. Promissory estoppel – ground 8 1. By ground 8 of his Notice of Appeal, the Appellant complains of the primary judge's rejection of the promissory estoppel argument and, in particular, his Honour's statement that reliance upon this argument was effectively abandoned. A review of the transcript does not support His Honour's conclusion and Mr Boyle, who appeared for the Respondent, very fairly conceded that he did not understand it to have been abandoned. He submitted, however, and with considerable force, that the promissory estoppel argument could not possibly succeed because no representation made on behalf of the Respondent to the Appellant was established. 2. As submitted, there was no evidence of any conduct on the part of the Respondent which encouraged the Appellant to adopt the claimed assumption as to the basis of their relationship and, in fact, all the evidence was inconsistent with the claimed assumption. I agree. It is an essential element of promissory estoppel that a "clear and unequivocal" promise be made by the party estopped to the party who relied upon the promise: Kramer v Stone [2024] HCA 48 [37]; (2024) 99 ALJR 126 (Kramer), citing Legione v Hateley (1983) 152 CLR 406 at 440, 435-437, 439; [1983] HCA 11; Foran v Wight (1989) 168 CLR 385 at 410-411, 435-436; [1989] HCA 51. It is also essential that "a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct": Kramer at [38]. 3. In the present case, there was neither a communicated extra-contractual promise, let alone one conveyed with the clarity required by the authorities, nor was there evidence of reliance. Rather, the Respondent's conduct was entirely in keeping with the formal contractual obligations entered into under the Loan Agreement. Conclusion 1. For the foregoing reasons the appeal must be dismissed with costs 2. MITCHELMORE JA: I agree with the Chief Justice. 3. ADAMSON JA: I agree with Bell CJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2025