Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Limited v Brakatselos [2012] NSWCA 107

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Limited v Brakatselos [2012] NSWCA 107 Hearing dates: 14-17 February 2012 Decision date: 26 April 2012 Before: Campbell JA at [1] Barrett JA at [371] Sackville AJA at [372] Decision: (1) Appeal allowed. (2) Set aside the judgments in the court below against each Appellant. (3) Enter judgment for Mr Holmes, with costs of the hearing at first instance. (4) Grant leave to Mr Wardle and Mr Gianuzzi to replead paras [28]-[31] of the Further Amended Defence by inserting into those paragraphs the particulars that had previously been in [27] of the Further Amended Defence, modified to make clear that Mr Lloyd is alleged to have been acting on behalf of both ARF and OAL. (5) Cross-appeal dismissed with costs. (6) Remit to the Equity Division for further hearing ARF's claim against each of the Appellants other than Mr Holmes (7) Reserve further consideration of what other orders should be made to give effect to these reasons for judgment. (8) Direct the parties within 14 days after delivery of these reasons for judgment to file short minutes of the orders that they agree are required to give effect to these reasons for judgment, and as to the costs of the appeal and the first instance hearing. (9) To the extent that the parties do not agree upon such orders, direct the Appellants within 21 days from the date of delivery of these reasons for judgment to file short minutes of the further orders they submit are required to give effect to these reasons for judgment, together with their submissions not exceeding four pages in length on the reasons why those orders are appropriate. (10) In the event that the parties do not agree upon orders pursuant to order 8, direct the Respondents within 35 days of the date of delivery of these reasons for judgment to file short minutes of the further orders they submit are required to give effect to these reasons for judgment, together with their submissions not exceeding four pages in length on the reasons why those orders are appropriate. [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.] Catchwords: CONTRACTS - performance - general principles - payment placed in post before due date for payment - posted payment arriving after due date for payment - whether "postal rule" requires that payment is made on posting the payment - "postal rule" not a legal principle of general application - passing of risk or making of payment by posting payment depends on terms of contract and surrounding circumstances - postal acceptance rule not wide enough to encompass "postal rule" in this sense - circumstances of agreement and communications regarding individual payments did not imply that posting a cheque was only form of making payment, nor that posting was payment in itself