Hubbard v Cheah

Judgment 1BEAZLEY JA: I agree with the reasons and orders proposed by Hodgson JA. I also agree with the additional comments of Giles JA. 2GILES JA: The facts are fully set out in the reasons of Hodgson JA, which I have had the advantage of reading in draft. 3I agree with his Honour that categorisation of Mr Cheah's funding as an investment or a loan is not helpful, and that what has to be determined is the effect of the provisions of the agreement. Clause 2(1)(e) is a complete basis for liability of HPL, and for the guarantors to be liable pay $460,000 to Mr Cheah, if the principal repayment to La Trobe had fallen due. 4Clause 2(1)(e) was pleaded as the basis for liability, although it was not specifically pleaded that the principal repayment to La Trobe had fallen due. Whether the principal repayment had fallen due was not prominent in the proceedings, which in this respect became preoccupied with investment or loan, but was an issue for determination on such evidence as was directed to it. 5The La Trobe loan was for one year from no later than 21 June 2005. As explained by Hodgson JA, it is apparent from the letter of 29 June 2006 that Mr Cheah had by that date not extended it. Thus the principal repayment had fallen due. Mr Cheah appears thereafter to have extended the La Trobe loan so that in January-February 2008 it was "becoming due and payable". But the second proposal in the letter of 29 June 2006 had not come to pass, and his accrued entitlement to have the $460,000 paid to or for him remained and was not negated by any such extension. 6Mr Hubbard submitted to the effect that a finding that the principal repayment to La Trobe had fallen due could not properly be made, because that had not been pleaded and other evidence might have been called if it had been an issue. While not specific as to the principal repayment falling due, the pleading alleged that HPL failed to make any payment on the La Trobe loan and demands for the whole $460,000. It was within the pleading that the principal repayment had fallen due, and it was open to find that it had notwithstanding the little attention paid to it in the proceedings. 7Although the case was not decided by the primary judge with a direct finding that the principal repayment to La Trobe had fallen due, her Honour's decision was correct. I agree that the appeal should be dismissed with costs. 8HODGSON JA: On 6 October 2010, Sidis DCJ gave her decision in proceedings in which the first respondent (Mr Cheah) had sued the second respondent (HPL), the appellant (Mr Hubbard), the third respondent (Mr Lindsay) and Secure Mortgage and Leasing Pty Ltd (Secure) for amounts said to be due pursuant to certain agreements. On the basis of that decision, the primary judge gave a verdict and judgment in the sum of $460,000 against HPL, Mr Hubbard and Mr Lindsay jointly and severally, and adjourned the proceedings to 10 November 2010 to deal with issues of costs and interest. On 10 November 2010, the verdict and judgment was varied by the addition of interest of $129,606.57. 9Mr Hubbard appeals from that decision.