New South Wales Court of Appeal CITATION: Agusta Pty Ltd v Perpetual Trustee Company Ltd [2010] NSWCA 110 JUDGMENT OF: Macfarlan JA at 1; Tobias JA at 6 EX TEMPORE JUDGMENT DATE: 6 May 2010 DECISION: The application for leave to appeal is dismissed with costs. CATCHWORDS: CONTRACT - ambiguous conduct not a basis for implying contract for renewal of loan CATEGORY: Procedural and other rulings CASES CITED: Laidlaw v Hillier Elsley Pty Ltd [2009] NSWCA 44 Agusta Pty Ltd (Applicant) PARTIES: Perpetual Trustee Company Ltd (First Respondent) Challenger Managed Investments Ltd (Second Respondent) FILE NUMBER(S): CA 2007/00263467 COUNSEL: D Ash (Applicant) P Barham (Respondents) SOLICITORS: Colin Biggers & Paisley (Applicant) Deacons (Respondents) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 15032/2007 LOWER COURT JUDICIAL OFFICER: McCallum J LOWER COURT DATE OF DECISION: 9 October 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Perpetual Trustee Company Limited v Agusta Pty Limited [2009] NSWSC 1075 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2007/00263467 TOBIAS JA MACFARLAN JA 6 MAY 2010 AGUSTA PTY LTD v PERPETUAL TRUSTEE COMPANY LTD Judgment 1 MACFARLAN JA: This is an application for leave to appeal from a decision of McCallum J of 9 October 2009. The only aspect of that decision under challenge is her Honour's finding that a loan made by the respondent to the applicant was not the subject of an agreement to renew when the term of the loan expired in November 2007. 2 There was no express agreement to renew the loan but the applicant contended that such an agreement had been made by implication. It relied upon conduct of the respondent after the date of expiration of the loan which pointed towards the existence of a renewal agreement. There was, however, conduct of the respondent which pointed in the opposite direction. This comprised the commencement and pursuit by the respondent of proceedings for possession of a property which was mortgaged to secure repayment of the loan. These proceedings were only justified if the loan had not been renewed and was thus repayable. 3 Her Honour rightly held that in these circumstances the applicant had not proved that the loan had been impliedly renewed. The conduct of the respondent was clearly ambiguous. This precluded any implication that it had agreed to renew the loan and I refer in this respect to what I said (with the concurrence of Beazley JA) in Laidlaw v Hillier Elsley Pty Ltd [2009] NSWCA 44 at [5] – [9]. 4 I add that I do not agree with the applicant's contention that the primary judge erred in her application of relevant case authorities. 5 As an appeal from the decision under challenge would not succeed, the application for leave should be refused. I propose that the application for leave be dismissed with costs. 6 TOBIAS JA: I agree. The order of the Court will be as proposed by Macfarlan JA. ********** 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.