Horizon Hotels Pty Ltd v Australian Secured & Managed Mortgages Pty Ltd

Court of Appeal (NSW)|2023-08-10|Before: Payne JA, Adamson JA, Henry J

ecember 2022 Before: Henry J File Number(s): 2021/369459

[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.]

JUDGMENT

PAYNE JA: I agree with Basten AJA.
ADAMSON JA: I agree with Basten AJA.
BASTEN AJA: On 25 August 2021, the appellant, Horizon Hotels Pty Ltd, entered into an Introducer Mandate Agreement appointing the individual respondent, Craig Steven Highmore, to obtain an offer of finance for the appellant. The following day a letter of offer was received from the first respondent, Australian Secured & Managed Mortgages Pty Ltd (ASMM). Although the appellant did not take up the offer, it remained liable, according to the respondents, to pay certain fees pursuant to the Introducer Mandate Agreement with Mr Highmore and expenses incurred by ASMM. Payment was secured by way of a charge over property at Potts Point owned by the appellant, the charge arising under the agreement.
The respondents lodged caveats over the appellant's property in September 2021. Following the issue of lapsing notices by the appellant, the respondents commenced proceedings in the Equity Division seeking payment of the amounts due under the agreement and an extension of the caveats until the amount of any judgment debt was paid. By a judgment delivered on 6 December 2022, Henry J ordered payment of a principal amount of $55,660 and made orders extending the caveats. [1]
On 7 March 2023, the appellant filed a notice of appeal seeking orders setting aside the judgment and orders of the Equity Division, including the orders extending the caveats. There was a question raised with the appellant as to whether it required leave to appeal, on the basis that the amount in issue was less than $100,000, being the threshold for an appeal as of right specified in s 101(2)(r) of the Supreme Court Act 1970 (NSW). Against the possibility that leave was required, on 26 May 2023, the appellant filed a summons seeking leave to appeal. It is desirable to address the question of leave first.

Requirement for leave

Section 101(2)(r) of the Supreme Court Act provides that leave is required with respect to a judgment made in proceedings in a Division, other than a judgment which, "(i) … involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) … involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more".
Three factual propositions are clear from the evidence. First, the amount of the claim, being the judgment debt the subject of the appeal, is less than $100,000. Secondly, the value of the property subject to the caveats is several million dollars. Thirdly, because the lodgement of the caveats created a circumstance of default under the primary mortgage to the National Australia Bank (NAB), the appellant has incurred, or is likely to incur, costs in excess of $100,000.
Given the first fact, par (i) in s 101(2)(r) is not satisfied. Accordingly, leave is required unless par (ii) is satisfied.
On one reading of par (ii), the question may be whether the property itself is of the value of $100,000 or more. However, it has long been established that this reading is incorrect. As was held in Oertel v Crocker [2] dealing with an equivalent provision in s 35 of the Judiciary Act 1903 (Cth), as then in force, the monetary qualification relates to the claim, demand or question, and not to the value of the property. Latham CJ stated: [3] "Thus the effect of s 35 depends upon the claim, demand or question in relation to which the judgment is given, and which is the matter for determination upon the appeal. In the present case the title of the plaintiff to the freehold of the land is not in dispute. It is not a subject matter of claim, demand or question. The value of the freehold is therefore irrelevant for the purpose of determining whether there is an appeal as of right."
In reaching a similar conclusion, Dixon J accepted that, grammatically, the phrase "amounting to or of the value of" attached to and qualified the words "any property or civil right"; further the word "respecting" attached to "claim" and "demand" (though possibly not "question"). Dixon J then concluded: [4] "But, conceding so much, I think that the claim or demand must itself relate to a civil right or legal property of the required value before it can fall within the true meaning of the expression 'claim demand or question to or respecting any property or any civil right amounting to or of the value of £300' as used in the sub-paragraph. The principle of a provision limiting the right of appeal by reference to the amount involved must go to the prejudice measured in money suffered by parties adversely affected by the judgment."
By quantifying the expenses likely to be incurred in giving effect to a judgment to be enforced by refinancing or sale of the property, the appellant sought to contend that, because the judgment involved the extension of the caveats, it indirectly gave rise to a claim, demand or question respecting property of the value of more than $100,000.
There is language in the judgment of Dixon J in Oertel which could support such a reading. Thus, in discussing possible reservations as to the proper construction of the provision he noted that "it is necessary to qualify the statement that the appellant must be worse off by £300 than he would be if the judgment had not been given or if he obtained the relief he seeks in the appeal". [5] Dixon J then concluded: [6] "But, generally speaking, I think that a satisfactory guide will be found if the prejudice sustained by the appellant under the judgment is considered or the advantage which he might obtain by the appeal."
However, properly understood there is no support for the appellant's position in these statements. First, the prejudice suffered by the appellant must arise "under the judgment" and not as a result of steps which may or may not be taken to enforce the judgment. Secondly, the right to appeal must arise at the time the judgment is delivered, and not at some later time when actions may be initiated by third parties as a result of the delivery of judgment. Thus, the appellant's case in this regard turned upon the fact that it was apparently unable to meet the judgment debt at the time judgment was delivered. In a practical sense, it was that matter which may give rise to the cascading events causing it loss, as recounted in the affidavits relied upon in support of the submission that leave to appeal was not required. It follows that the appellant requires a grant of leave to appeal in the terms sought in its summons seeking leave.
The respondents raised a further basis upon which leave was required, namely that the appeal was from a judgment of the court extending the operation of a caveat. Such orders are made under s 74K of the Real Property Act 1900 (NSW) and leave to appeal from such orders is required under s 101(2)(m) of the Supreme Court Act. If the amount of the judgment was properly valued at a figure in excess of $100,000, and the extension of the caveats was dependent upon the correctness of that judgment, there may be some doubt as to whether par (m) would impose a separate requirement of leave, but in any event leave would usually be granted in such circumstances. However, where the debt giving rise to the right to lodge a caveat is of an amount below $100,000, or the value exceeds $100,000 only because of the extension of the caveat, as appears to be the appellant's case, the operation of par (m) may be engaged. As the respondents submitted, the appellant had not explained why par (m) was not engaged.
To the extent that the appellant's ground 7 related to the caveats alone, it may be accepted that leave was required to pursue that ground. Thus, there were two bases on which leave to appeal was required. Accordingly, the notice of appeal should be dismissed as incompetent. Sometimes it may be appropriate to treat an incompetent notice of appeal as a draft to which reference may properly be made in considering whether to grant leave. That course is not necessary because the appellant filed a separate draft notice of appeal, with amended grounds, which was relied on during the hearing.

Whether grant of leave to appeal appropriate

While the court has long been cautious in granting leave where the amount in issue is small, having regard to the apparent policy of discouraging appeals where the amount in issue is under the threshold, [7] that approach now has statutory support under Pt 6 of the Civil Procedure Act 2005 (NSW). Importantly, s 60 states that "the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute".
A further consideration is that the amount of the debt fell within the jurisdictional threshold of the Local Court. That is not to criticise either party for bringing the proceedings in the Supreme Court. The need to deal with the extension of the caveats in this Court could have led to two sets of proceedings if the question of liability had been dealt with in the Local Court, combined with the possibility of a bifurcation of the appeal process. Indeed, the arguments in respect of the caveats were dependent on the form of the orders creating liability for the debts which supported them, so that a bifurcation of the proceedings would have been inherently problematic.
Finally, in relation to the amount of the claim, there was an affidavit of a director of the appellant, read on the application for leave to appeal, which established the outstanding debts secured against the property as an amount in the order of $11 million. The amount in the dispute in the present proceedings (some $55,000) is a very small sum in this context, being roughly equivalent to the monthly payment of interest alone payable by the appellant to the NAB.
Those considerations mean that there must be weighty factors favouring consideration by this Court, if leave is not to be refused. These factors may be the existence of a question of principle, a matter of public interest or a need to maintain the regularity of the administration of justice because the judgment is shown to be demonstrably wrong.
Despite the strong reasons to refuse leave, the countervailing considerations are persuasive. For reasons which will be explained below, there was an issue of principle or public interest arising in the circumstances of the case, warranting a grant of leave and a more than merely arguable claim of error in the judgment below.

Introducer Mandate Agreement

On 25 August 2021, the appellant entered into the agreement titled "Introducer Mandate Agreement", with the individual respondent, Mr Highmore, which constituted the primary source of his claimed entitlement to payment of fees. Pursuant to cl 3.3 of that agreement Mr Highmore was entitled to payment of fees upon "procuring a written offer of finance" which complied with certain conditions.
It is convenient to set out the first page (or "terms sheet") of the agreement, which was in total a document covering four pages. Introducer Mandate Agreement I/We, the applicant/s described below hereby appoint to Craig Highmore to source an offer of for finance broadly in accord with preferred loan amount and the preferred term on the terms set out in this Agreement which comprises this terms sheet and the following Terms (terms). Capacity APPLICANT/S (Or any related entity as agreed upon between applicant/s and lender) Borrower 1 Horizon Hotels Pty Ltd A/T/F The Horizon Hotels Trust Guarantor 1 Gregory James Magree Guarantor 2

PREFERRED LOAN AMOUNT $1,100,000.00 LOAN PURPOSE Refinance & working capital PREFERRED TERM 8 months SECURITY OFFERED Registered caveat Address Lots 1 & 2, 82-94 Darlinghurst Road, Pott Points NSW 2011 Title Details T.B.A. Security Type Unregistered 2nd Mortgage

EXCLUSIVITY PERIOD 2 weeks (The period during which the client will use the services of Craig Steven Highmore exclusively to source finance) PROPOSED GUARANTORS Gregory James Magree

INDICATIVE INTEREST RATES Type of Security Provided Registered 1st Mortgage(s), personal guarantee & GSIA Registered 1st Mortgage Not applicable Unregistered 2nd Mortgage 2.00% per calendar month OUR FEES Valuation & Lenders Fee's As advised by the lender (ASMM) Commitment Fee of $2,500.00 for land & bankruptcy searches & ancillary costs. As advised by the lender (ASMM) Application/Origination Fee Procuration Fee @ 3.00% + GST ($36,300.00 inclusive GST) Brokerage Fee @ 1.50% + GST ($18,150.00 inclusive GST) Direct Deposit to: Nominated Bank Account for Craig Steven Highmore - ABN 76 346 904 763 Brokerage Fee (only) BSB: 033-000 A/C No: 47-4776

Of the terms, the following were important with respect to the "Indicative interest rates" set out in the terms sheet. First, cl 2 provided an acknowledgement by the applicant that: "(b) the indicative interest rates are indicative of minimum interest rates only and any funding will be at a higher rate."
Secondly, cl 3 was, relevantly, in the following terms: "3 Fees and charges … 3.3 Subject to clause 6.3, the applicant/s agrees to pay the application/origination fee to Craig Steven Highmore within 2 business days of Craig Steven Highmore procuring a written offer of finance from a lender for an amount within 10% of the preferred loan amount, indicative interest rate and preferred term. … … 3.8 The applicant/s acknowledges and understands that it will be liable to pay the application/origination fee to Craig Steven Highmore: • irrespective of whether or not the terms of any offer of finance sourced are acceptable to the applicant/s, as long as the offer of finance is for an amount within 10% of the preferred loan amount, indicative interest rate and preferred term; …"
As will be explained shortly, the conditions of payment of the specified fees and charges were expressly subject to the conditions contained in the bolded passages in cll 3.3 and 3.8, but not otherwise, although somewhat inconsistently with such an absolute obligation, the "search and administration costs" referred to in cl 3.1 were non-refundable even if Mr Highmore failed to secure "a suitable offer of finance": cl 3.2. In any event, at least at trial, the appellant accepted that failure to obtain an offer which complied with the security condition did not necessarily deprive Mr Highmore of his entitlement to payment of his fees, as would non-compliance with the factors specified in cll 3.3 and 3.8. Rather, the appellant contended that compliance with the security condition was so fundamental to the appellant's engagement of Mr Highmore that it constituted an implied condition on payment of his fees which he was estopped from denying. It was labelled the "fee assumption".

Letter of offer

The day after the Introducer Mandate Agreement was signed, Mr Highmore obtained from ASMM a "Letter of offer - Second mortgage" signed by a director of ASMM, Ms Asciak. The offer was for the "preferred loan amount", namely $1.1 million, and for the "preferred term", namely eight months. There were two respects in which the appellant contended that the offer did not comply with the Introducer Mandate Agreement. These related to the security, which was required in the Introducer Mandate Agreement to be in the form of "unregistered 2nd mortgage", and the interest rate, which was required to be 2.00% per calendar month, give or take 10%.
The letter of offer identified the required "Security" as "[r]egistered first and second mortgage over" the appellant's lots at Potts Point. In the conditions of the offer the following appeared: "3. Subject to the current first mortgagee consenting to the registration of a subsequent mortgage in favour of the Lender, also producing a Deed of Priority on behalf of all parties and making the title available at the Titles Office, the Borrower gives an undertaking to ensure that the current mortgagee complies. 4. Capping the first mortgage with the National Australia Bank to the sum of $9,700,000 and that no further advances will be made."
Mr Highmore acknowledged in his oral evidence that the reference to a registered first mortgage under the requirements for "Security" was a "typo". [8] That was no doubt correct, because, as set out above, both conditions 3 and 4 on the second page of the letter identified a "current first mortgagee" and identified a first mortgage with NAB. However, there was no suggestion that ASMM was not seeking a registered second mortgage, nor that such a condition was other than inconsistent with the terms of the Introducer Mandate Agreement. The issue was explored further in evidence, both documentary and oral, at the trial. That material will be considered in relation to the estoppel argument.
Secondly, the appellant contended that the letter of offer did not comply with the mandate in that it required payment of interest at 30.0% per annum which was not only higher than 2% per calendar month (or 24% per annum) but 25% higher, and therefore outside the margin permitted under cll 3.3 and 3.8 of the terms of the Introducer Mandate Agreement.
The item on the first page of the letter under the heading "interest only rate" read as follows: "2nd mortgage: 24.0% per annum (concessional rate) 30.0% per annum (standard rate) Interest payable: The Mortgagor must pay to the Mortgagee interest monthly in advance calculated at the 'Standard Rate', however, the Mortgagee will accept interest calculated at the 'Concessional Rate' in lieu of Interest calculated at the 'Standard Rate' if the Mortgagor pays interest calculated at the 'Concessional Rate' within 7 days of the date interest is due to be paid and no Event of Default has occurred. Provided the 'Standard Rate' applies, interest is calculated on the total of the secured amount for the period when the payment was due."
One further aspect of the letter of offer should be noted: in the list of terms and conditions against the heading "Repayments", the following appeared: "Unless advised to the contrary the Borrower is to pay the Lender eight (8) months' interest in advance at settlement representing the sum of $176,000. Interest commences on the first day from the date of settlement."
The heading "Repayments" appeared to be inapt: there was no requirement for repayment of capital set out in the letter of offer, but it may be implied from the fact that the interest is stated at an "interest only rate", and from the maximum and minimum terms of the loan both being eight months, that the full amount of the loan was repayable eight months from the date of settlement.
Two other observations may be made with respect to the material under the heading "Repayments", set out at [31] above. First, what is in effect a requirement for payment of eight months interest at settlement involves a reduction of capital at that time because the requirements that interest is payable "monthly in advance" and that interest at the concessional rate will be accepted in certain conditions, is not consistent with the full amount of the interest being due and payable at the commencement of the loan. The effect, namely that interest is payable on amounts which have already been repaid, suggests that the true interest rate is the amount of the loan less 7/8ths of the initial repayment (allowing for payment of one month's interest in advance), being an amount of $154,000. That reduction is greater than 10% of the loan and accordingly the interest rate on the amount outstanding will be greater than 2% per calendar month, by an amount greater than 10%.
While the appellant's case was not put on that basis, the primary judge was alert to the effects of the requirement in construing the letter of offer, as will appear below. Rather, the appellant's case was that the indicative interest rate was the standard rate referred to in the letter of offer, namely 30% per annum or 2.5% per calendar month. That rate did not comply with the margin for variation permitted under cll 3.3 and 3.8 of the Introducer Mandate Agreement and the letter of offer was therefore outside the terms which would permit Mr Highmore to recover his fees.
The respondents contended that the relevant rate was the "concessional rate" because that was the rate that was expected to be charged on the loan. That submission was not consistent with cl 2(b) set out at [23] above.
If the respondents' contention were correct, the "standard rate" would not be the standard rate but would in effect be a default rate. If it were in fact a default rate, there was a commercial risk that, at least since the decision of the High Court in Andrews v Australia and New Zealand Banking Group Ltd [9] the higher rate might be an invalid penalty. Andrews held that the application of the penalty doctrine is not limited to penalties imposed for breach of contract, which is apt to explain why the "standard rate" was so identified.
The contention that if the full amount were paid at settlement, only the concessional rate would have operation, cannot be accepted.
The assumption is that, if the interest were paid fully in advance of any interest being due and payable, or at least in advance of any but one month's interest being due and payable, then there would be no realistic scope for the standard rate to apply. However, as was pointed out in the course of argument, one term of the offer involved capping the mortgage with the NAB. It was at least a realistic possibility that the appellant might miss an interest payment to the NAB and thus be in default under the proposed loan agreement with ASMM. There were, no doubt, other ways in which a default could arise under a standard loan agreement without there being default in payment of interest to the lender. Accordingly, there was no reason to treat the "standard rate" as something other than the standard rate to be charged.
Neither party sought to make anything of the qualification in the Introducer Mandate Agreement that the indicative interest rate was indicative of the "minimum rate only and any funding will be at a higher rate" which might suggest that the "standard rate" had been foreseen and was expected to be the relevant rate. On the other hand, the underlying purpose of inserting cll 3.3 and 3.8, at Mr Barkas' insistence, on behalf of the appellant, was to avoid having to pay interest at a rate of over 2.2% per month or 26.4% per annum.
The respondents submitted that the consideration of whether the higher rate might be treated as a penalty if not identified as the "standard rate" was irrelevant, because this was not a case involving penalties. That was true, but did not undermine the proposition that the contract should be construed in accordance with its terms if those terms would be more likely to avoid a finding of a penalty than the alternative construction.
Whether or not Mr Highmore was aware at the time that he entered into the Introducer Mandate Agreement of the terms of the offer likely to be forthcoming from ASMM the following day, he agreed to a requirement which effectively prevented him from obtaining payment of his fees unless the interest rate, however expressed, was no greater than 10% above 2% per calendar month. In the present case the standard rate was significantly higher than the margin allowed and accordingly the letter of offer did not comply with the requirement of the mandate in that respect.

Non-compliance with indicative interest rate - judge's reasoning

There were two steps in the reasoning of the primary judge which were inconsistent with this analysis. First, and despite accepting that the term of the loan offer "was no doubt drafted in that way with a view to avoid any claim that the higher, standard rate interest was penal", [10] the judge nevertheless accepted the respondents' submission "that the commercial effect of the 30% standard rate is that it operates under the Loan Offer as a 'default' rate only" and described it as "a higher default rate". [11] With respect, the latter conclusion denies the substance of the first conclusion and, as a matter of contractual construction is not the preferable choice.
Secondly, and dealing with the requirement for payment in advance of the whole of the interest, the judge identified the apparent object and commercial purpose of the mandate as being to obtain "a written offer for a loan at $1,100,000, with an interest rate of 2% per month over an 8 month term, with all interest to be capitalised and prepaid". [12] That may have been a fair description of the letter of offer, but it is difficult to discern any basis for deriving the italicised words from the Introducer Mandate Agreement. Further, as noted above, there are other difficulties in identifying the actual interest rate as falling within the prescribed limits if one accepts that all interest is to be prepaid and that that was a condition of both the mandate and the letter of offer.
Thirdly, and in terms with which neither party took issue, the judge rejected as immaterial to the exercise of contractual construction both the evidence of Mr Barkus as to his understanding of the Introducer Mandate Agreement, and the fact that the letter of offer had been accepted, as indicating some different view. [13] Nevertheless, the matters which the primary judge found persuasive in reaching a different conclusion should not be accepted. Those matters were not necessary to render the terms of the Introducer Mandate Agreement harmonious, nor to avoid them resulting in commercial nonsense or commercial inconvenience. [14] No doubt the conclusion is one about which minds might differ, and the primary judge set out her reasoning clearly and precisely; nevertheless, the better view is that set out above, which entails the conclusion that the letter of offer did not comply with a condition of the mandate which was essential to the crystallisation of Mr Highmore's entitlement to payment of his fees.

ASMM's claim

Subject to one qualification, that conclusion must lead to the appeal being upheld and the judgment below in relation to Mr Highmore's fees being set aside. There is, however, one further basis on which entitlement to the fees was proposed by the respondents. As the primary judge noted, ASMM claimed entitlement to payment of certain fees identified in cl 8 of the letter of offer, pursuant to one of two further provisions, namely cl 11 or a "further term".
Clause 8, described in the letter of offer as one of the conditions to which the offer was subject, stated: "8 Fees and charges you [ie the appellant] are responsible for are: (a) Administration Fee of $660 inclusive of GST (b) Commitment Fee of $550 inclusive of GST (c) Establishment Fee of $36,300 inclusive of GST (d) Brokerage Fee of $18,150 inclusive of GST (e) Legals estimated at $6,600 plus disbursements."
Because no liability to pay those fees had been incurred by the lender, the primary judge rejected the respondents' contention that the fees (including Mr Highmore's brokerage fee and the establishment fee) were payable pursuant to cl 11 of the letter of offer. That finding was not the subject of a notice of contention and need not be considered further. However, the judge concluded that all except the legal fees (estimated at $6,600 plus disbursements) were fees for which the appellant was liable to ASMM pursuant to the "further term" of the letter of offer.
The matter referred to as the "further term" in the reasons of the primary judge was a statement which appeared under the signature of Ms Asciak of ASMM and under the signatures of Mr Magree on behalf of himself and the appellant. The term was set out in the judgement: "43 The final page of the Loan Offer contains the signature blocks, which are signed by Mr Magree for and on behalf of Horizon Hotels and on his own behalf, after which the Loan Offer states as follows: I/We hereby accept the above terms and conditions and I/we agree to proceed with the loan application. I/We undertake to pay such expenses as are incurred in relation to this loan application whether or not the Title to the subject security be accepted and further acknowledge that should this transaction not be completed for any reason whatsoever, I/We shall indemnify the Lender and ASMM against all proper costs and charges involved as well as any Procuration and legal fees which but for the fact that this transaction is not completed would be payable. I/We hereby charge my/our interest, whether held now or I the future, in any real estate with the due payment of such costs, charges and fees and acknowledge that this charge creates an estate or interest in the said real estate entitling the Lender, ASMM or the Lender's solicitor to lodge a caveat on any real estate I/We own, to secure such payment."
The critical words are the indemnity given to ASMM "against all proper costs and charges involved as well as any procuration and legal fees which but for the fact that this transaction is not completed would be payable".
The proper construction of that terminology must be that relevantly ASMM would be entitled to recover such amounts. The reason why such recovery is not possible is only that "this transaction is not completed". There are, as it appears, three problems with concluding that the appellant is liable to ASMM for the fees set out in condition 8(a)-(d), on this basis.
First, cl 8 appears to be a statement of fact, namely that these are fees for which the appellant "is responsible", meaning is liable to pay. If, either for the reasons set out above, or on the basis of the estoppel discussed below, the appellant is not liable to pay either the establishment fee or the brokerage fee to Mr Highmore, cl 8 does not create such a liability. If, for example, the procuration fee is not payable because the liability for payment has not crystallised, then it is not payable under the "further term", where the reason for non-payment must be non-completion of the loan transaction. Assuming that the term "legal fees" includes the other fees, the same reasoning applies: to the extent that they are not payable, it is not because of the non-completion of the loan transaction.
Secondly, the only item in cl 8 described as a legal fee is that in par (e), the claim to which the primary judge rejected; there is no basis to treat the term "legal fees" in the "further term" as covering any of the other items identified in cl 8.
Thirdly, the "further term" confers an indemnity on ASMM. The terms under which ASMM is liable to pay Mr Highmore the procuration fee, for example, were not disclosed in the evidence. If there were such a liability, it would make commercial sense of the indemnity granted by the appellant only if the fee was also one for which the appellant was "responsible". On the assumption that that is not the case, no separate and independent source of liability is to be found in the letter of offer. To the extent that the judgment below depended on a contrary conclusion, it should be set aside.

Nature of permissible security interest - estoppel

The manner in which this matter proceeded in the Equity Division was flawed in a number of respects. The respondents commenced the proceedings on 30 December 2021 by way of a summons seeking judgment for amounts owing to each of the respondents, together with orders extending caveats held by them with respect to property of the appellant. There was, as the primary judge noted, no claim for "any final substantive equitable relief that sought to establish or vindicate the nature of the proprietary interest" in the appellant's land. [15] It was only on the second day of the hearing that the respondents amended the summons to seek declarations that the amounts owing were secured under the Introducer Mandate Agreement by way of charge over the appellant's properties.
The absence of pleadings was also unfortunate, and was noted to be so by the primary judge who stated that "this was a matter that should have proceeded by way of pleadings". [16] One difficulty which would have been apparent had the matter been pleaded, was the basis for the appellant's claim as to an estoppel.
On one view, the appellant's case rested on the simple proposition that the letter of offer required a registered second mortgage, whereas the Introducer Mandate Agreement expressly specified a registered caveat over the identified property at Potts Point, together with an unregistered second mortgage. On that view, Mr Highmore's entitlement to fees was not engaged by securing finance in the terms of the letter of offer. There was a disconformity between the requirements of the appellant in relation to security and the terms required by the proposed lender, with respect to security.
The respondents' approach at trial, as revealed in the cross-examination of Mr Barkas, the agent for the appellant, was that Mr Highmore's fees became payable under the Introducer Mandate Agreement with respect to an offer of finance which complied with the margins of variation provided in cll 3.3 and 3.8 of the agreement. That is, the acknowledgement in cl 3.8 was that the fees would be payable "whether or not the terms of any offer of finance sourced are acceptable to [Horizon Hotels], as long as the offer of finance is for an amount within 10% of the preferred loan amount, indicative interest rate and preferred term". Those matters, on the respondents' case, were the only preconditions to Mr Highmore's entitlement to payment of his fees. The appellant accepted that proposition as a matter of contract, but nevertheless asserted that Mr Highmore was precluded from claiming his fees on the basis of an estoppel, known as the "fee estoppel". The estoppel rested on a common assumption, namely that he would be precluded from claiming fees unless the proffered offer of finance was conditioned on acceptance of an unregistered second mortgage as security.
The primary judge rejected the appellant's estoppel case on a number of grounds. These will be addressed in turn, but there was an overriding aspect of the judge's reasoning which coloured her approach. In effect, she looked for specific evidence that the relevant parties "adopted the Fee Assumption", which gave the label a positive and apparently independent existence of its own. This may be seen in the following passage: "141 There is also no good reason why Mr Highmore, ASMM or Horizon Hotels should have adopted the Fee Assumption and the evidence outlined above, does not support a finding that they did. This is especially as Horizon Hotels signed the Introducer Mandate Agreement after negotiating its terms, and which relevantly is inconsistent with the Fee Assumption, and then signed the Loan Offer, which included a reference to a registered second mortgage and the need to contact NAB."
The first proposition in this statement illustrates the search for independent evidence as to a set of facts which, on one view, were simply an integral element of the proposed arrangement. The first point raised by the second sentence was that the appellant signed the Introducer Mandate Agreement which was "inconsistent" with the fee assumption. That proposition is, with respect, circular. If the Introducer Mandate Agreement set out a number of parameters for the proposed finance offer, each of which was an essential part of the appellant's requirements, the absence of an express statement to that effect is unpersuasive. Thus, as Mr Highmore recognised in the exchange referred to at [28] above, as to the requirement for a registered first mortgage in the letter of offer, the appellant was not offering a first mortgage. Mr Highmore knew that and accepted that as one of the inflexible parameters. However, there was no reference to that matter in the specific provisions in cll 3.3 and 3.8 in relation to margins of variation with respect to the monetary elements. The fact that the appellant signed the Introducer Mandate Agreement without seeking an express condition on the fee payments to Mr Highmore by reference to the security available, provided no objective basis for concluding that the appellant did not think that Mr Highmore's fees were conditioned upon such a requirement, nor that Mr Highmore did not share that assumption. Objectively, there was no room for flexibility with respect to the available security. It would have made no sense to include some express provision which permitted a degree of variation of that requirement. Accordingly, signing the agreement without a specific term conditioning payment of Mr Highmore's fees upon the financier being content with an unregistered second mortgage was simply unnecessary. Similarly, there was no term conditioning his fees upon the financier being willing to grant finance without a first mortgage. Whether or not the terms of the Introducer Mandate Agreement supported the fee assumption, they were not inconsistent with it.
Secondly, the judge relied upon the fact that the appellant signed the letter of offer which contained the requirement that there be a registered second mortgage. On one view, that conduct might have constituted a waiver of any requirement in the Introducer Mandate Agreement which was inconsistent with the terms of the offer. No such case appears to have been run. Certainly no such contention was raised in this Court. In any event, the proposition went too far. As already noted, the letter of offer included a requirement for registered first and second mortgages. Yet Mr Highmore knew that the offer which required a first mortgage should simply have been rejected. The fact that Mr Magree for the appellant signed the letter of offer may indicate that he did not note the requirements with respect to security, or, more probably, as revealed by the later evidence, expected that there would be ongoing negotiations with respect to security. The letter of offer was not a loan agreement: a formal loan agreement would follow, no doubt with various supplementary terms which might need negotiation. Furthermore, the respondents did not rely upon the signing of the letter of offer as a complete answer to the other basis upon which the appellant resisted paying Mr Highmore's fees.
Returning to the judge's reasons, there were various aspects of the evidence which the judge concluded did not support the view that ASMM understood that Mr Highmore's fees would not be payable if the financier required a registered second mortgage. However, for the reasons explained above, the evidence did not support the conclusion that ASMM had a legal liability to pay Mr Highmore's fees. And even if it did, it did not follow that the arrangement between ASMM and Mr Highmore was identical to the arrangement between the appellant and Mr Highmore. Rather, the circumstances in which the appellant was liable to pay Mr Highmore's fees turned on the agreement between it and Mr Highmore.
The substance of the judge's further reasons are contained in the following passage: "139 The evidence indicates that Mr Highmore and ASMM were aware that Horizon Hotels wanted a loan with an unregistered second mortgage. That evidence includes the terms of Mr Highmore's 24 August email, his evidence at [37] above, the emails and communications referred to at [127(d)] above), and Ms Simonetta's evidence in cross-examination that she understood that Mr Barkas had indicated that Horizon Hotels was looking for an unregistered second mortgage which could be secured by caveat and was very firm about not wanting ASMM to contact 'the bank'. However, awareness of Horizon Hotels' requirement for an unregistered second mortgage does not, in my view, establish knowledge of the Fee Assumption propounded, which relevantly requires knowledge and adoption an assumption that fees would not be payable unless the loan provided for an unregistered second mortgage."
These findings supported the conclusion that Mr Highmore's fee entitlement was dependent upon obtaining an offer of finance which did not require a registered second mortgage. Thus, the first sentence was correct: both Mr Highmore and ASMM knew that the appellant "wanted" a loan with an unregistered second mortgage. However, at least with respect to Mr Highmore, that knowledge was based on at least the contents of the Introducer Mandate Agreement. Secondly, the appellant did more than "want" such an outcome: it specified it as a requirement in the agreement with Mr Highmore. A loan requiring a first mortgage was useless to it as it had already granted a first mortgage; a loan requiring a second mortgage was equally useless, because to obtain such finance would be an event of default under its agreement with NAB.
In the second sentence, Mr Highmore's acknowledgement in relation to the first mortgage also supported the conclusion that the security requirements were fundamental terms of his agreement with the appellant.
Emails between Ms Simonetta of ASMM and Mr Highmore on 25 August 2021, forwarded to Mr Barkas by Mr Highmore, demonstrated that ASMM knew that the appellant was not willing to give a registered second mortgage. Ms Simonetta stated: "Given recent experiences, we do need to be able to contact a bank person to be able to confirm amount owing and over time that they will register a second mortgage."
Mr Highmore sent that email to Mr Barkas saying "mate, sorry to bust your chops [but] read below". Mr Barkas responded to Mr Costigan, the broker dealing on behalf of the appellant, with respect to the sentence set out above: "We do not want them contacting NAB. We do not want a second mortgage registered."
Mr Costigan then responded to Mr Highmore stating, "The appellant's [lawyers] have pointed out that the nab docs say he can't get a second mortgage which is why we got a caveat last time with signed unregistered 2nd docs ready to go". Mr Highmore responded: "Lender knows we cannot get consent from Nab that doesn't mean they won't take an unregistered second mortgage. The second mortgage is only an 'insurance policy' should the loan go into default."
In short, the trial judge accepted that these matters were known to the relevant parties, but appears to have rejected their relevance on the basis that knowledge of the facts did not amount to acceptance of the impossibility of obtaining the required security as being inconsistent with the Introducer Mandate Agreement or the fee assumption.
The judge noted that the "fee assumption" was not put to Mr Highmore during cross-examination. [17] However, as the judge correctly noted, in rejecting Mr Barkas' evidence as to his understanding of the operation of the agreement, the legal effect of the agreement was a matter for the court to determine, and would not be assisted by the opinions of various witnesses. Mr Highmore was cross-examined (albeit briefly) in relation to his understanding as to the limits of the available security, but his understanding in that regard could be gleaned from the email exchanges noted above.
In circumstances where the effect of the written documents was not a matter which turned upon the views of the witnesses, this Court is in as good a position as the trial judge to determine the appropriate inference to be drawn from the written documents, including the Agreement itself. The fact that both Mr Highmore and Ms Simonetta may have hoped to obtain a loan agreement on the basis that a registered second mortgage could be negotiated with NAB at a later point in time, did no more than confirm their knowledge that a requirement for a registered second mortgage was beyond the contemplation of the Introducer Mandate Agreement.
Even described as an estoppel based on the common understanding of the parties, of which the Agreement was evidence, the failure of the letter of offer to comply with the requirement that the security on offer was limited to an unregistered second mortgage, with the lender's interest protected by caveat, resulted in Mr Highmore failing to obtain a letter of offer within the terms of the understanding. Accordingly, his entitlement to payment was limited to the fees incurred with respect to search and investigation of title, if any.

Extension of caveats

If the foregoing conclusions are correct, the orders made by the trial judge must be set aside. It follows that ground 7 in the draft notice of appeal, challenging the orders made, does not arise. However, against the possibility that the foregoing conclusions are in error, it should be addressed.
Ground 7 read: "7 The Court erred in granting the remedy of a mandatory injunction [by] decree of specific performance, declarations of charge and extension of the operation of [the caveats] beyond judgment, in lieu of an award of damages...."
The trial judge made eleven orders. Orders 1 and 2 declared that Horizon Hotels "has granted equitable charges" in favour of ASMM and Mr Highmore respectively, "to secure payment of monies payable to" each of the respondents. The declaration in favour of ASMM was based upon the execution by Horizon Hotels of the offer on 30 August 2021; the declaration in favour of Mr Highmore was based upon the Introducer Mandate Agreement executed by Horizon Hotels on 25 August 2021.
Orders 3 and 4 were declarations of the amounts owed by Horizon Hotels to each of the plaintiffs, stating that the amount was "secured by way of the equitable charges". Orders 5 and 6 read as follows: "(5) Order the defendant to pay to the first plaintiff the amount of $37,510. (6) Order the defendant to pay the second plaintiff the amount of $18,150."
Orders 7-10 provided for the operation of each of the four caveats to be "extended until payment of the amounts referred to in orders 3 and 4 respectively". Order 11 required Horizon Hotels to pay the plaintiffs' costs of the proceedings.
As with the other contentions raised by the appellant, the formulation of ground 7 was obscure and confused. The underlying proposition was that orders 5 and 6 invoked the equitable jurisdiction of the court to order specific performance of the contract. Where the performance involved the payment of money, it was unnecessary and therefore inappropriate to grant equitable relief where damages for breach of contract would have sufficed. The formulation of the orders drew upon the amended summons filed by ASMM and Mr Highmore on 14 July 2022. The formulation, it was submitted, was deliberate because the caveats relied upon charges granted in the relevant documents. The caveats based on those charges could only be extended if the orders by way of specific performance required compliance with the terms of the contract.
In the course of oral argument, it became apparent that the appellant's argument was that the claims required determination of the amount of the debts owed to each of the respondents which, at common law, could have given rise to a judgment debt. However, a judgment debt for an amount of money would not itself confer any proprietary interest in land which could be protected by a caveat. On the other hand, the entitlement of the respondents under the respective contracts would merge in the judgment debt so that the charges under each contract would no longer operate with respect to the payments of those debts. That followed because, in accordance with each of the first two declarations, the equitable charges were to secure payment of monies payable "under" the letter of offer or the Introducer Mandate Agreement.
Accepting each step in the argument presented by the appellant, the essential proposition on which the argument stood or fell was that the equitable charges did not extend to a judgment debt.
Clause 5 of the Introducer Mandate Agreement relevantly had two parts. Clause 5.1 provided that the applicant "hereby charges and mortgages" in favour of Mr Highmore the appellant's interest in real property "to secure payment by the applicant … of the fees and any or all other monies due to" Mr Highmore by the appellant "including all amounts that Craig Steven Highmore may incur in connection with the enforcement and/or preservation of its rights under this agreement".
Clause 5.2 provided that "[i]f requested" the appellant agreed to sign a mortgage over its real property to "better secure payment of the fees".
The appellant submitted that cl 5.2 was not engaged because Mr Highmore had not requested it to sign a mortgage, nor had it done so. That was significant, it was further submitted, because the terms of such a mortgage might well have included an "all monies" clause which would extend to securing payment of the judgment debt. Absent that "instrument of charge and mortgage" cl 5.1 did not extend to securing payment of the judgment debt.
The appellant's case in this regard therefore turns upon the proposition that the phrase "the fees and any and all other monies due to [Mr Highmore]", in cl 5.1, did not extend to a judgment debt, accepting that the entitlement under the agreement had merged in the judgment debt and no longer existed as a separate basis on entitlement. In part, that argument turned on the final three words of cl 5.1 ("under this agreement") governing the term "all other monies due". However, grammatically, its place in the clause suggests that those words qualified the separate inclusion of costs incurred in connection with the enforcement or preservation of Mr Highmore's right, and not the earlier phrase referring to all monies due. Secondly, the appellant's contention required that the phrase "all other monies due" was inserted to refer to search and administration costs, payable pursuant to cl 3.1, which might not be treated as "fees", a term which was specifically identified in the first page of the terms sheet and would have included the procuration fee and the brokerage fee which were the subject of the claim.
It may be accepted that the words "all other monies due" did indeed cover those costs and charges which might not have fallen within the meaning of the term "fees", which was italicised in cl 5.1 and therefore appeared to be a defined term, but it did not follow that those very broad words were confined to that function. Just as the appellant appeared to accept, albeit by way of distinguishing cl 5.1 from cl 5.2, that an "all monies" clause could include the judgment debt, so the phrase "all other monies due" should be understood as including a money judgment for whatever amount might be found by a court to be payable under the agreement.
Accordingly, although there may be some force in the submission that orders by way of specific performance were not appropriate, and that the appropriate order would have been "judgment for the plaintiff in the amount of", nothing turns on that. Such an order would have constituted an entitlement to moneys payable to Mr Highmore for the purposes of cl 5.1 of the agreement.
Curiously, the argument was not developed in relation to the declarations made with respect to ASMM. The letter of offer contained no terms equivalent to cl 5 of the Introducer Mandate Agreement. While it was true that cl 8 of the letter of offer stated that the appellant was "responsible for" certain fees and charges, including the "establishment fee" (being the "procuration fee" referred to in the Introducer Mandate Agreement) and the "brokerage fee" referred to in the Introducer Mandate Agreement, no entitlement to charge or mortgage for the protection of those amounts is to be found in the letter of offer. Clause 11 of the letter of offer contained a charge created by "signing the acceptance of this offer" the charge secured due payment of "the costs" which were defined as fees incurred by the lender (ASMM).
In these circumstances, had there been an amount due to ASMM by way of fees, the contention that it would have been entitled to a caveat to protect its interest in payment of the judgment debt would have had merit.

Conclusions

For the reasons set out above, the appellant should have leave to appeal and the appeal should be allowed. The Court should make the following orders: 1. In matter No 2022/387563 (appeal proceedings) dismiss the appeal with no order as to costs. 2. Direct that the documents filed in the appeal be treated as filed in the summons matter. In matter No 2023/168897 (summons matter): 1. Grant the applicant leave to appeal from the judgment in the Equity Division delivered on 6 December 2022. 2. Direct that the draft notice of appeal filed in the appeal proceedings be treated as the notice of appeal in this matter. 3. Allow the appeal and set aside the judgment and orders made in the Equity Division on 6 December 2022. 4. In lieu thereof: 1. dismiss the amended summons filed in the Equity Division on 14 July 2022; 2. order that the plaintiffs pay the defendant's costs of the proceedings in the Division; 1. Order that the respondents pay the appellant's costs in this Court.

Endnotes

Australian Secured & Managed Mortgages Pty Ltd v Horizon Hotels Pty Ltd [2022] NSWSC 1647.
(1947) 75 CLR 261; [1947] HCA 40.
Oertel at 268.
Oertel at 272.
Oertel at 274.
Oertel at 275.
Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69.
Trial Tcpt, p 39(35).
(2012) 247 CLR 205; [2012] HCA 30.
Judgment at [92].
Judgment at [96] and [97].
Judgment at [99] (emphasis added).
Judgment at [100]-[101].
Judgment at [80], referring to recent High Court authority including, most recently, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]-[17].
Judgment at [67].
Judgment at [65].
Judgment at [140]. 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: 28 September 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)