Wyse & Young International Pty Limited v Sanna [2019] NSWSC 683

Supreme Court New South Wales

Medium Neutral Citation: Wyse & Young International Pty Limited v Sanna [2019] NSWSC 683 Hearing dates: 12, 13, 14 September, 25, 26, 27, 31 October 2017, 14, 15, 16 February, 8 March 2018 Date of orders: 07 June 2019 Decision date: 07 June 2019 Before: Brereton J Decision: See paras [259]–[272] Catchwords: CONTRACT – formation of contract – acceptance – whether contract executed by offeree – whether signature forged - question of fact – held, contract executed

CONTRACT – formation of contract – acceptance – whether offer accepted by conduct – whether offeree had notice of terms – question of fact – held, offer accepted

CONTRACT – construction – where contract provided for broker to earn "saving fee" of 20% of "saved debt" – where broker negotiated discharge of mortgage for less than amount secured but no reduction in personal indebtedness – held, the definition of "saved debt" upon which entitlement to a "saving fee" depended was concerned with personal indebtedness not amount of any encumbrance – the fee was not earned

CONTRACT – unjust contracts – relief under Contracts Review Act not available to a corporation – whether defendants' application for relief made within time – whether contract for the purpose of a business carried on by personal defendant – whether provision of contract relating to interest rate unjust – where upon refinance of pre-existing liability defendants not specifically informed of significantly higher interest rate – held, provision was unjust and interest varied to pre-existing default interest rate as against personal defendant only

FIDUCIARY OBLIGATIONS – whether relationship between accountant/financial adviser and client was fiduciary – held, at least in connection with lending transaction it was not – whether refinance transaction in interests of adviser and contrary to interests of client – held, it was not – whether restitution possible – held, it was not, but if there was a breach of fiduciary obligation and restitution was possible there should be a just allowance by way of interest Legislation Cited: (CTH) Family Law Act 1975, s 90C (NSW) Civil Procedure Act 2005, s 95 (NSW) Contracts Review Act 1980, s 6, s 7, s 16 Cases Cited: Barisic v Devenport [1978] 2 NSWLR 111 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 DCL Construction Group Pty Ltd, In the matter of [2017] NSWSC 839 Fraser Edmiston Pty Ltd v AGT (Qld) Pty Ltd [1988] 2 Qd R 1 Green & Clara Pty Ltd v Bestobell Industries Pty Ltd (No 2) [1984] WAR 32 Haywood v Roadknight [1927] VLR 512 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 Matouk v Entrance Seabreeze Pty Ltd [2010] NSWSC 649 McKenzie v McDonald [1927] VLR 134 Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296 Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1 NZ Netherlands Society "Oranje" Inc v Kuys [1973] 2 All ER 1222 Phipps v Boardman [1967] 2 AC 46 Rubino v Pineview Property Holdings Pty Ltd [2016] NSWSC 904 Sanna v Wyse and Young International Pty Limited (No 2) [2015] NSWSC 581 Speirs v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 Spicer v Carmody (1948) 48 SR (NSW) 348 Torlonia v Wright [2016] NSWSC 1139 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Wyse & Young International Pty Ltd (ACN 146 329 008) (P1) Defined Property Investment Pty Ltd (ACN 146 084 451) (P2) Wolgan Consulting Pty Ltd (ACN 056 986 586) (P3) Corrado Sanna (D1) DCL Construction Group Pty Ltd (ACN 158 381 821) (D2) Representation: Counsel: G Dimitriou, director (self-represented, by leave) (Ps) J C Lee (Ds)