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[2025] VSC 166
General information, not legal advice.
Supreme Court of Victoria
2025-04-02
M Osborne J
Original judgment source is linked above.
CONTRACT - Whether the execution and backdating of contract had the effect that a payment constituted an advance under the contract - Reasonable business persons understanding of what the terms of the contract to mean - Consideration of language used, circumstances addressed by the contract and commercial purpose or object to be secured by contract - Inferences to be drawn by conduct of the parties to the contract - Assumption of liability - No consideration - Whether contract wholly executory and enforceable - Repudiation - McKay & Anor v National Australia Bank Limited [1998] 1 VR 173 - McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377 - David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48;
CONTRACT - Reliance losses as a species of damages recoverable for breach of contract - Facilitation principle - Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 98 ALJR 719 - 123 259 932 Pty Ltd v Cessnock City Council [2023] NSWCA 21; (2023) 110 NSWLR 464.
CONTRACT - Post contractual admissions - Relevance of post contractual conduct where such conduct constitutes an admission against interest - Whether admission relates to a matter of fact or question of law or mixed fact and law - Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 - FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] VicRp 76; [1993] 2 VR 343.
CONTRACT - Whether contract entered into - Implied and express terms - Material terms of the contract - Whether funds advanced pursuant to the contract - Narrower terms established.
EQUITY - Money had and received - Money had and received by the defendant to the use of the plaintiff - Money paid by the plaintiff to the use of the defendant - Distinction between money paid by mistake or on a consideration that happens to fail and a promise by the defendant to repay the money to the plaintiff that had been provided at the defendant's request.
1 The plaintiffs, JB Asset Management and KB Kookmin Bank, are Korean companies which provided LBA Capital Pty Ltd ('LBA') with a pool of funds for investment purposes. LBA provided $2.97 million from the pool, to or for the benefit of one or more of the tenth defendant, Next Stage Living Group Pty Ltd ('NSL Group'), the eleventh defendant, Next Stage Living Moonee Ponds Pty Ltd ('NSLMP'), the twelfth defendant, Trivett Property Partners Pty Ltd ('Trivett') or the fourteenth defendant, Next Stage Living Pty Ltd ('NSL') (collectively 'the NSL companies'). In this proceeding, the plaintiffs seek to recover the sum of $2.97 million together with interest from one of the NSL companies on a variety of bases. The plaintiffs have taken an assignment of the rights of LBA and therefore stand in the shoes of LBA with respect to the claims against the NSL companies. LBA is the first defendant but the plaintiffs' claims against it were resolved long ago and it played no active role at trial.
2 LBA is a company associated with James Charisiou and Mario Charisiou who are the fifth and eighth defendants. James Charisiou is now in jail after being convicted of crimes connected to LBA's investment of the funds provided by the plaintiffs. The claims against James and Mario were resolved long ago and they too played no active role at trial.
3 NSL played no active role at trial[1] either but filed a written outline of submission on 29 January 2025. In substance it says that it is liable to LBA and hence to the plaintiffs for $2.97 million with respect to an action by the plaintiffs as assignee, for moneys had and received to the use of NSL on 2 August 2019.[2]
4 NSL Group, NSLMP and Trivett actively defended the claims against them. In broad terms, each denies that it is liable and submits that NSL is the only entity which has any form of liability to the plaintiffs.
5 The plaintiffs called no oral evidence. This was explicable given that they were effectively strangers to the transaction between LBA and one or more of the NSL companies. The plaintiffs sought to rely upon documentary evidence tendered at trial. The NSL companies did not call any oral evidence either. They too relied solely on the documentary record.
6 The claims brought by the plaintiffs as assignees of LBA's rights fall into the following categories:
(a) against Trivett for $2.97 million plus interest allegedly payable under the terms of a facility agreement between LBA and Trivett dated 19 June 2019 ('Facility Agreement') (collectively, 'Facility Agreement claim');
(b) alternatively, a claim by the plaintiffs against one or more of NSL, NSL Group and NSLMP for $2.97 million plus statutory interest, alleged to be owing pursuant to an agreement between LBA and one or more of NSL, NSL Group and NSLMP on or around 20 or 21 June 2019 ('NSL Loan Agreement') (collectively, 'NSL Loan Agreement claim');
(c) alternatively, a claim brought by the plaintiffs against one or more of NSL, NSL Group and NSLMP for moneys had and received ('moneys had and received claim').
7 If the plaintiffs succeed with respect to the Facility Agreement claim, they claim they are entitled to recover $2.97 million together with interest under the Facility Agreement which calculated to the first day of trial, totalled $5,268,094.68. Alternatively, if they succeed in relation to the NSL Loan Agreement claim, they contend that the interest payable is at the lower end $78,115.07, as against NSL, or at the higher end $1,401,189.04, alternatively $503,679.45 as against NSL Group and/or NSLMP.
8 As the evidence at trial was entirely documentary, it is necessary to give close attention to the documentary record in order to determine what occurred and the inferences that can be drawn from the documents. As is not uncommonly the case, when commercial parties engage in transactions, the participants do not turn their mind to relevant matters with the precision and care which might otherwise be desirable.
9 Nevertheless, in the result, the critical facts and conclusions as to the basis of liability of the NSL companies comes down to a relatively confined number of documents.
10 Before examining the documentary record, it is helpful to identify some of the more significant individuals involved. The key transaction was the acquisition by NSLMP of vacant development land and an existing retirement village[3] in Moonee Ponds from Ardmillan Place Nominees Pty Ltd ('Ardmillan') for a price of circa $30 million pursuant to a contract of sale ('contract of sale') and asset sale agreement entered ('asset sale agreement') dated 5 August 2019.
11 NSLMP intended to develop the vacant land and thereby construct an expanded retirement village.
12 It is uncontroversial that LBA agreed to provide funding which was to be used to complete the transaction and effect the development. Of the promised funding of $18.5 million, LBA only provided $2.97 million.
13 In the relevant communications between LBA and the NSL companies, LBA's communications were effected by Mario Charisiou and, to a lesser extent, James Charisiou. They were assisted at times by LBA's solicitor, Nick Galatas from GPZ Legal.
14 NSL was incorporated on 13 March 2018. NSL Group and NSLMP were incorporated on 8 November 2018. At the relevant times Joshua Balsim and Daniel Milentijevic, were the two directors of each of the companies and it appears that the shares in each were owned by Trivett and by another company associated with Mr Milentijevic.
15 Trivett's directors were Raffaele Aiello and Asya Balsim. The Australia Securities and Investments Commission's records show that Asya Balsim and Joshua Balsim both have the same residential address and as such are evidently related. The shares in Trivett were apparently owned by Leo Trivett Pty Ltd ('Leo Trivett') as trustee of the Leo Trivett Trust and Balsim Family Holdings Pty Ltd ('Balsim Family Holdings') as trustee of the Balsim Family Trust. Mr Aiello is the ninth defendant. He is now a bankrupt and no claims against him remain on foot. Anatoly (Tony) Balsim, another remember of the Balsim family was also party to some of the relevant correspondence.
16 Rick Goldberg from Madgwicks Lawyers acted for one or more of the NSL companies during the relevant transaction. Anthony Cuzzupi, from an organisation known as the Jasmine Development Group Pty Ltd also assisted the NSL companies, apparently acting as some form of finance broker or intermediary. Dimitrios Zartaloudis was an accountant who assisted one or more of the NSL companies.
17 In October 2018, Madgwicks Lawyers and NSL entered into a retainer pursuant to which Madgwicks Lawyers agreed to provide NSL with legal services in connection with the acquisition of 11-45 Derby Street, Moonee Ponds ('Property'). Trivett also signed the relevant costs agreement as guarantor/third party payer.
18 Later in October 2018, NSL and Ardmillan entered into a terms sheet which in broad terms provided that NSL would purchase land and acquire the business, including taking an assignment of an existing lease, from Ardmillan for a price of $26.05 million for the Property and $3.95 million for the business. The terms sheet contemplated that the price would be payable as to a holding fee of $30,000, a deposit of 10% of the purchase price less the holding fee (being $2.97 million) payable on execution of the asset sale agreement and contract of sale, followed by two further payments of $3.555 million and $1.445 million, with payment of the latter entitling the purchaser to take possession of the Property and settle the asset sale agreement. The balance of the purchase price of $22 million was to be provided by vendor finance and be repayable 24 months after the purchaser took possession of the Property and business.
19 For reasons which are neither clear nor relevant, the parties did not enter into formal documentation until 13 May 2019 when they entered into a put and call option which related to both the Property and the business. Relevantly, the put and call option was entered into by Ardmillan as vendor and NSLMP as purchaser with the purchaser's obligations under the put and call option guaranteed by Mr Milentijevic, Joshua Balsim and Trivett, among others. Annexed to the put and call option were unexecuted copies of the contract of sale and asset sale agreement.
20 Shortly afterwards, on 16 May 2019, Mr Aiello emailed Mario Charisiou attaching, among other things, a proposed cash flow and feasibility summary. It is apparent that Mr Aiello sent the documentation to Mario Charisiou in connection with an effort to obtain finance from LBA as the cashflow identifies LBA as a source of funding including with a need for just over $3 million in June 2019 which would attract interest at 15% with a further drawdown of just over $12 million in September 2019. The funding proposed to be provided by LBA was designated as equity funding distinguishing it from three further loans, two from Rexnova the second of which was a construction loan and the third, a bank loan.
21 On 20 May 2019, Mr Milentijevic emailed Mario Charisiou, copying in Tony Balsim, Joshua Balsim and Mr Aiello, enclosing a copy of the asset sale agreement and contract of sale, both of which, consistent with the put and call option, specified the name of the purchaser as NSLMP.
22 By 30 May 2019, LBA appeared to be of the belief that the proposed purchaser and borrower was to be Trivett. So much is apparent from an email sent by Mario Charisiou to Mr Galatas dated 30 May 2019 in which Mario Charisiou asked whether Trivett was to be a special purpose vehicle for the sole purchase of purchasing 'Ardmillan', asked for copies of the contract of sale between Trivett and the vendor and stipulated that LBA would enter into an agreement to fund the project at an interest rate of 15% but that the shareholders (of Trivett) would have to personally guarantee the funds.
23 On 31 May 2019, Mr Zartaloudis, Mr Galatas, Mr Aiello and James Charisiou exchanged emails including one from Mr Zartaloudis to Mr Galatas and Mr Aiello copied to James Charisiou (and a Jude Bedier from ABD Group) which attached a current structure chart for the NSL companies. The attached structure chart identified Trivett as the holder of 80% of the shares in NSL Group with the shares in Trivett being held as to 50% each by Leo Trivett and Balsim Family Holdings with NSL and NSLMP, amongst others, as wholly owned subsidiaries of NSL Group.
24 Later on 31 May 2019, Joshua Balsim emailed Mr Zartaloudis, copied to Mr Aiello and Tony Balsim, attaching a draft letter with the subject line 'LBA Capital Funding Agreement Letter DRAFT'. The draft letter contained provision for signature by both Trivett and LBA and specified that LBA was to provide funding of AUD19 million, excluding the vendor finance (including construction and consultants), at 15% interest, and to provide the funds as per the attached cash flow. The subject line for the draft letter was 'Ardmillan Place by [NSLMP] - Funding Agreement'.
25 On 3 June 2019, Mr Cuzzupi sent a copy of the executed put and call option to Mario Charisiou and James Charisiou. The put and call option had annexed to it an unexecuted copy of the contract of sale. Both specified NSLMP as the purchaser.
26 On 11 June 2019, Mr Cuzzupi emailed Joshua Balsim, Tony Balsim, Mario Charisiou, James Charisiou and Mr Aiello with the subject line 'Project Update/WIP Moonee Ponds' and attached two documents, one of which was a project review document tabled at a meeting the previous Friday. The covering email also referred to a project WIP identifying items on the critical path. Those items included, among other things, the resolution of three condition precedents in the contract of sale, vendor approval of the deposit payment into a trust account, and project bank account. The email stated '[a]s payment of deposit is imminent, completion of above items and agreement on program and strategy (namely TH) is critical to ensure timely ROI'.
27 The attached project review document specified total acquisition funding of $30 million comprising holding fee of $30,000 with a date October 208 (sic), deposit of $2.97 million June 2019, settlement of $5 million September 2019 and settlement of $22 million September 2019 (sic). Item 4, the loan repayment schedule (vendor and LBA), specified an opening balance in connection with the LBA loan of $19 million together with an opening balance of the vendor loan of $22 million.
28 On 12 June 2019, Mario Charisiou emailed Mr Cuzzupi requesting a copy of the constitution for Trivett so as to 'set up the account'.
29 Mr Cuzzupi obtained a copy of the constitution which he onforwarded to Mario Charisiou and James Charisiou on 17 June 2019.
30 On 18 June 2019, Mr Cuzzupi emailed Mr Zartaloudis advising that James Charisiou from LBA would phone soon and that he wanted confirmation as to whose name the joint bank account should be held under. Mr Cuzzupi's email noted that they had been progressing on the basis that the joint account would be in the names of LBA and Trivett. Mr Cuzzupi's email also referred to a loan agreement between the parties and asked if Mr Cuzzupi was assisting with that.
31 Later on 18 June 2019, Mr Cuzzupi emailed Mario Charisiou providing details of Madgwicks Lawyers' trust account which read '[b]elow are our trust account details for payment of deposit which will be due to be paid to Ardmillan when the relevant documentation has been entered into'.
32 On 20 June 2019, Mr Cuzzupi emailed Mario Charisiou, James Charisiou, Joshua Balsim, Tony Balsim, copied to Mr Aiello. The email which was addressed to 'Mario/James' set out the 'relevant details pertaining to the payment of holding deposit for Ardmillan Place Moonee Ponds'. It went on further to say '[p]ayment is to be made today'. He provided the contact details for Madgwicks Lawyers and requested that they advise Madgwicks Lawyers when payment is made. The email specified an amount of $2.97 million.
33 Mario Charisiou's email in response sent 21 June 2019 requested that Madgwicks Lawyers contact LBA's solicitor, Mr Galatas on 'a couple of things'. The email continued:
The funds to be transferred are lent to the group hence a loan agreement needs to be in place to the purchasing entity with guarantees in place. If this can't occur fast enough I suggest have Madgwicks email Nick ASAP, that the funds will remain in their trust account until we have our loan facility/agreement in place, when this is done, the funds can be issued out to the Vendor (I believe the funds are only in trust to show the vendor that we have the funds and to go to contract, which should give us time to produce the loan agreement).
34 Mr Cuzzupi responded by email sent 21 June 2019 to Mario Charisiou, James Charisiou, Joshua Balsim, Mr Galatas and copied to Mr Aiello stating:
Confirming Jen (Madgwicks) will contact Nick and arrange all particulars pertaining to the loan agreement.
As noted below, Jen will also confirm to Nick, in writing, that the funds will remain in the Madgwicks Trust Account and request Nick proceed and transfer funds today. This will ensure the Vendor receive confirmation of the transfer by Monday and the loan agreement can be finalised over coming days.
35 Madgwicks Lawyers emailed Mr Galatas on 21 June 2019. The email confirmed that they acted on behalf of 'Next Stage Living'. The email continued:
As mentioned in recent correspondence, the vendor has requested we provide proof we hold funds in our trust account in anticipation of payment of the deposit.
We confirm the funds which are to be transferred into our trust account will be held until such time as the loan agreement is put in place between our client and the lending group.
We have been advised by our client the funds are to be transferred into our trust account as a matter of urgency. Would you please provide us with receipt of the transfer so that we can allocate the funds to the correct file immediately.
...
Would you also please provide us with the agreed terms of the loan agreement so that we may commence preparation of the relevant documentation.
36 On 24 June 2019 (which was a Monday), Madgwicks Lawyers emailed Mr Galatas acknowledging receipt of $2.97 million into Madgwicks Lawyers' trust account over the weekend. On the same day, Madgwicks Lawyers sent a trust account receipt dated 21 June 2019. The trust account receipt was addressed to [LBA]. The relevant entry read:
File SJH 038064 Next Stage Living Pty Ltd
Acquisition 11-45 Derby Street, Moonee Ponds
Deposit/Acquisition of Ardmillan Moonee Ponds
Received from [LBA]
Received by Direct Deposit
Trust Account Receipt #026876
Received: Two million, nine hundred and seventy thousand Dollars only
Receipted by Alan Trang
37 Earlier on 24 June 2019, Mr Milentijevic emailed Madgwicks Lawyers requesting that Madgwicks Lawyers notify MinterEllison (who were acting for the vendor) 'that you are holding the deposit in your Trust account which will be released upon satisfaction of the CPs in the Put & Call Option'. In accordance with that instruction, Madgwicks Lawyers emailed MinterEllison confirming that 'we currently hold funds in trust for payment of the deposit due to Ardmillan'.
38 On 1 July 2019, Mr Milentijevic emailed Mr Cuzzupi, copied to Tony Balsim and Joshua Balsim, enclosing a 12 month look ahead cash flow summary for discussion the next day. His email continued:
In summary $17.5m peak funding in October '19 required from Trivett. This figure is inclusive of the deposit and consultants already paid of $3.2m spent to date.
Settlement is 2nd September 2019 $12.22M incl my estimate of all adjustments. This figure may vary if existing vacant stock is settled prior to our settlement, or new vacancies occur.
Balance of funds will be the $22m vendor loan as shown on the attached.[4]
39 On 19 July 2019, Mr Cuzzupi emailed Mario Charisiou, copied to Mr Aiello and another, with the subject line 'Moonee Ponds - Settlement Confirmation'. A document was attached entitled 'Moonee Ponds feasibility study July 2019 LIVE.xlsx'. The covering email addressed to Mr Aiello and Mario Charisiou noted that the particulars 'regarding formal release of the deposit and settlement dates had been agreed in principle'. He then set out, among other things, the parties agreement to terminate the put and call option, to sign the amended asset sale agreement and release of deposit on 1 August 2019 and settle and take possession of the business on 2 September 2019.
40 On 26 July 2019, Mr Cuzzupi emailed Mario Charisiou. His email recorded that a loan agreement was required to formalise the funding arrangement between LBA and Trivett. He set out his thoughts and suggested that they discuss and agree on the most efficient process. He then set out a number of bullet points which included reference to an overarching loan agreement outlining the total loan amount and all required particulars, drawdowns including deposit drawdown with confirmation of amount and process for the drawdown along with project funding drawdowns with funds to be transferred at agreed intervals and to be transferred from LBA to either Trivett trust or project bank account.
41 On 31 July 2019, Mr Cuzzupi emailed Madgwicks Lawyers requesting advice as to the actions required to ensure that the 'deposit is released tomorrow'. Mr Milentijevic responded to this email advising that Madgwicks Lawyers had confirmed that they simply need an email instruction from a director of NSLMP (that is, Mr Milentijevic or Joshua Balsim) to release the deposit.
42 On 1 August 2019, Mr Milentijevic sent two emails to Madgwicks Lawyers, the first of which advised that [they] were at MinterEllison's office about to sign the documents and that he would advise when complete in order to release the funds. He sent an email shortly afterwards confirming that the documents had been executed and requesting that Madgwicks Lawyers arrange 'to remit the deposit per the instructions below' (which is a reference to the bank account details provided by the vendor).
43 Earlier that day, Mario Charisiou had emailed Mr Zartaloudis, copied to Mr Galatas, Mr Aiello and Tony Balsim, advising that:
We are moving towards contracts now and we need to have a facility put in place which will be funding to the group. Can you please forward the directors and or names of the company making the purchase along with the shareholders and or beneficiaries so that we can have them nominated as guarantees.
44 On 2 August 2019, there was an exchange of emails between Madgwicks Lawyers and MinterEllison confirming release of the deposit on 2 August 2019.
45 On 5 August 2019, the asset sale agreement and contract of sale were formally executed. There was no change of any significance to those that were earlier appended to the put and call option with NSLMP again being recorded as the purchaser.
46 On 6 August 2019, Mr Cuzzupi emailed Joshua Balsim and Tony Balsim attaching a Moonee Ponds feasibility cashflow. His cover email advised that the cashflow would be sent to Mario Charisiou that day to finalise the loan agreement. The attached cashflow, among other things, referred to financing to be provided by Trivett. Relevantly, it recorded an increase in the funding provided by Trivett from $208,311 as at the end of May 2019, to $3,211,393 at the end of June 2019. At the end of September 2019, the amount of funding was to step up from the $4,534,360 in the preceding month to $17,061,083 with provision for repayment thereafter in August 2023.
47 On 7 August 2019, Mr Cuzzupi sent a further email to Tony Balsim and Joshua Balsim and to Mr Milentijevic, copied to Mr Aiello, which set out a list of the information requested by LBA to finalise the loan agreement. Mr Cuzzupi's email confirmed that he would be the only point of contact with LBA and he asked that all the information be provided to him to collate and distribute. The list of requirements included, among other things, details of the cashflow requirement for August to December 2019, funds required for acquisition (funds to be directly deposited in Madgwicks Lawyers' trust account), funds required for project running costs (funds to be directly deposited into the project bank account).
48 In response, Mr Milentijevic provided Mr Cuzzupi with a copy of the cash flow and an estimate of the settlement funds required. In a further email sent on 8 August 2019 to Tony Basim and Joshua Basim, he set out what a summary of what he had earlier sent Mr Cuzzupi:
Funds to Madgwicks Trust Account $12,000,000
Total Funds required $17,500,000
Less Funds drawdown to date ($325,595.55) attached
Less Funds to Madgwicks a/c ($12,000,000)
Less Deposit Paid ($3,000,000)
Balance of Funds to project account $2,174,404 (including outstanding invoices below)
49 On 14 August 2019, Mr Cuzzupi emailed Mario Charisiou, copied to Mr Aiello, Joshua Balsim and Tony Balsim enclosing a draft of the Facility Agreement for his consideration. He requested that Mr Charisiou review and provide comments at the earliest opportunity. The draft of the Facility Agreement specified the lender as LBA, the borrower as Trivett with guarantees to be provided by Asya Balsim and Mr Aiello. The schedule to the agreement specified a facility limit of $18.5 million and a repayment date of 36 months from the date of the initial drawdown date. The draft of the Facility Agreement had been prepared by Madgwicks Lawyers.
50 On 16 August 2019, Mr Milentijevic prepared a memorandum headed 'Ardmillan Place Funding'. It identified the deposit paid of $3 million and total funds required at settlement of $12.39 million which was broken down as to business and land $5 million, construction $2.47 million, vacant stock $2.93 million, stamp duty $1.73 million and land tax $0.26 million. The document was signed by Mr Milentijevic and underneath his signature recorded that he was a director of NSLMP.
51 On 18 August 2019, Mr Milentijevic emailed Mario Charisiou attaching a drawdown notice for the Ardmillan settlement together with account details for Madgwicks Lawyers' trust account. The drawdown notice was in the name of NSLMP, specified amount of $13 million and was addressed to LBA.
52 Later that day, Mario Charisiou emailed Mr Milentijevic and requested that he make the amount total in the drawdown notice $17 million. Accordingly, Mr Milentijevic sent a further drawdown notice to LBA again in the name of NSLMP requesting drawdown of $17 million.
53 By email dated 19 August 2019, Mario Charisiou requested that Mr Milentijevic date the drawdown notice 'last week please'. Mr Milentijevic complied with the request and attached a further copy which was dated 'last Friday' (which was 16 August 2019).
54 On 19 August 2019 at 6:45am, Mr Milentijivic emailed Mario Charisiou, copied to Tony Balsim, attaching signed copies of the deed of termination of the put and call option, the contract of sale and the asset sale agreement.
55 On 19 August 2019 at 10:07am, Mario Charisiou emailed Joshua Balsim attaching an unexecuted copy of the Facility Agreement and requested that he have the Facility Agreement 'signed and dated back two weeks ago and send to me asap this morning please'.
56 On the same day, Mr Milentijevic emailed Mr Cuzzupi requesting that he provide Mr Milentijevic with Trivett's bank account details to return surplus funds from Madgwicks Lawyers, which Mr Cuzzupi did by email return.
57 Notwithstanding the request by Mario Charisiou to Joshua Balsim on 19 August 2019 that the Facility Agreement be signed and dated 'two weeks ago', it is common ground that the Facility Agreement when executed by LBA and Trivett was in fact dated 19 June 2019. 19 June 2019 is two days before LBA transferred the $2.97 million into the Madgwicks Lawyers' trust account.[5]
58 The recitals to the Facility Agreement record that the lender (LBA) has agreed at the request of the borrower (Trivett) and the guarantor (Asya Balsim and Mr Aiello) to provide the facility to the borrower.
59 'Facility' is defined as 'the revolving cash advance facility granted pursuant to cl 3.1 for the Facility Purposes'. 'Facility Purposes' is defined as 'the purposes for which the Advances are to be used as stated in Item 5 of Schedule 1'. Item 5 in Schedule 1 specifies the loan purpose as '[f]or working capital of the Borrower'.
60 'Advance' is defined as 'any drawing pursuant to this Agreement up to the maximum amount of the Facility Limit, and where appropriate, the amount of each Advance'.
61 The 'Facility Limit' is defined as the amount specified in item 1 of Schedule 1 which in turn reads $18.5 million (which is) 'available for drawdown in one or more Advances on or after the Initial Drawdown Date'.
62 'Initial Drawdown Date' is defined as the date of the first Advance under this Agreement being the date specified in item 2 of Schedule 1 which is the date which is 'by no later than five (5) Business Days after the later of the date of this Agreement and the date of satisfaction of the Conditions Precedent'.
63 'Drawdown Date(s)' is defined as 'the date on which an Advance is or is proposed to be made and includes the Initial Drawdown Date'.
64 On 9 October 2019, Tony Balsim sent an email to James Charisiou and Mr Galatas attaching Trivett's drawdown notice, an earlier copy of which had been sent on 7 October 2019. The drawdown notice was in Trivett's name, was addressed to LBA and was in the amount of $14 million.
65 On 11 October 2019, Mr Galatas wrote to Tony Balsim on LBA's behalf. His letter referred to the Facility Agreement and noted that 'our client has previously advanced $2.97 million to you pursuant to that Agreement'. His letter continued by advising that the funds that LBA had represented were available under the Facility Agreement were no longer available and accordingly LBA could not proceed with the Facility Agreement. He advised that LBA would not be making the drawdown requested and required the immediate return of the $2.97 million previously advanced by way of loan together with interest accrued from 21 June 2019.
66 On 14 October 2019, Trivett sent a default notice to LBA with respect to the failure to provide advances in response to the drawdown notice sent 7 October 2019.
67 On 18 October 2019, Madgwicks Lawyers wrote to LBA's solicitors advising that they acted for Trivett and stating the following:
The Facility Agreement entered into by our respective clients on 19 June 2019 (Facility) does not provide for the return of any moneys advanced to our client until the Repayment Date, being 36 months from the Initial Drawdown Date. That date has not passed and as such, the moneys are not due.
Furthermore, there is no discretion provided for in the Facility which would entitle your client to terminate or otherwise end the agreement. As such, it is your client who is in breach of the Facility and if any party is entitled to payment it is ours.
We therefore put your on notice that unless your client complies with its obligations owed pursuant to the Facility our client will make a claim against LBA for the loss and damage suffered by our client. Such a claim would include (but is not limited to) the following heads of damages:
Loss of the deposit paid which will be forfeited to the vendor;
- Damages for breach of contract including any that are required to be paid to the vendor;
- Damages for loss of profits in respect of the development of the property;
- Damages in respect of the additional costs and interest that will be incurred should our client be able to procure alternative finance; and
- Damages in respect of the additional legal, finance and valuation costs associated with procuring a new loan.
As you can see from the heads of damages, the claim against your client may well be tens of millions of dollars. In all the circumstances our client will not be remitting any funds, rather, they look forward to receipt of the balance of the funds payable pursuant to the Facility.
We note that our client is in the process of mitigating its loss by attempting to procure alternative finance. Should those attempts prove fruitless, we have instructions to proceed as set out above.
68 NSLMP subsequently commenced proceedings in this Court against Ardmillan in which it sought, inter alia, an order for repayment of the deposit and/or judgment in the amount of the deposit. This was on the basis, inter alia, that Ardmillan had wrongfully repudiated the asset sale agreement and contract of sale and that the repudiation had been accepted by NSLMP who had validly determined the contract of sale and asset sale agreement accordingly.
69 Following a trial, the Court ordered there be judgment for NSLMP against Ardmillan for loss and damage in the sum of $5,516,250 plus interest thereon in the further sum of $1,011,060.62 in accordance with s 60 of the Supreme Court Act 1986 (Vic). Further that Ardmillan repay to NSLMP the deposit paid under the contract of sale in the sum of $2,605,000 together with interest thereon in the sum of $485,315.09, as well as the deposit paid under the asset sale agreement in the sum of $365,000 together with interest in the further sum of $68,000.
(a) From about October 2018, Madgwicks Lawyers commenced acting for NSL in respect of the acquisition of the Property. It is clear that Madgwicks Lawyers' retainer extended to advising the purchaser and further that from at least 13 May 2019, the NSL companies had determined that the purchaser would be NSLMP.
(b) On 26 October 2018, NSL signed a term sheet with Ardmillan as vendor styled 'Derby Street Acquisition - Terms Sheet'.
(c) On or around 13 May 2019, Ardmillan as vendor and NSLMP as purchaser and others including Mr Milentijevic, Joshua Balsim, NSL Group, Decca Design Pty Ltd and Trivett, entered into the put and call option, the annexures to which included the asset sale agreement and contract of sale.
(d) On 21 June 2019, LBA paid $2.97 million into the trust account of Madgwicks Lawyers.
(e) The payment of $2.97 million into Madgwicks Lawyers' trust account was made for the purpose of demonstrating to Ardmillan that funds would be available to fund deposits that would become payable upon satisfaction of conditions precedence and the exercise of rights under the put and call option deed. In addition, that otherwise the $2.97 million was not to be released from Madgwicks Lawyers' trust account until such time as a formal loan agreement was in place between LBA and the borrower which was to be one of the NSL companies.
(f) Notwithstanding that no formal loan agreement was in place, on 2 August 2019, the sum of $2.97 million was paid to Ardmillan in payment of the deposits payable by NSLMP under the contract of sale and the asset sale agreement.
(g) On or around 5 August 2019, NSLMP and Ardmillan executed the contract of sale and the asset sale agreement.
(h) By no later than about 26 July 2019, the NSL companies had determined that Trivett would be the entity that would be party to the formal loan agreement with LBA and that the funds provided by LBA pursuant to this agreement would form part of the funding obtained to satisfy NSLMP's obligations under the contract of sale and that the asset sale agreement would be financed in part by a vendor loan and otherwise by funds provided by Trivett.[6]
(i) Accordingly, on or about 19 August 2019, LBA and Trivett executed the Facility Agreement which was backdated to 19 June 2019.
(j) On 7 October 2019, Trivett issued a drawdown notice to LBA seeking a drawdown of $14 million from LBA pursuant to the Facility Agreement.
(k) On 11 October 2019, LBA sent a letter to Trivett in which it refused the drawdown notice.
(l) On 14 October 2019, Trivett issued a default notice to LBA.
(m) On 25 May 2020, Ardmillan repudiated the contract of sale and the asset sale agreement which repudiation was accepted by NSLMP as a consequence of which the contract of sale and the asset sale agreement came to an end.
(n) By orders dated 5 April 2022, the Court made orders, inter alia, that Ardmillan repay NSLMP the deposit paid under the contract of sale and the asset sale agreement in the respective amounts of $2,605,000 and $365,000.
71 By an assignment deed dated 17 August 2022, LBA assigned to the plaintiffs any and all rights it held arising out of the Facility Agreement in respect of the $2.97 million purportedly paid pursuant to the Facility Agreement.
72 On 19 August 2022, the plaintiffs served notices of assignment on Trivett and Aysa Balsim, informing Trivett and Aysa Balsim of the assignment.
73 On 21 October 2022, the plaintiffs made a demand for repayment from Trivett.
74 On 2 June 2023, LBA entered into an assignment deed with the plaintiffs by which it assigned:
(a) any and all rights it held in respect of the $2.97 million paid to NSL Group and/or NSLMP pursuant to the NSL Loan Agreement; and
(b) any and all rights, including causes of action, it held at the general law or in equity as regards to the $2.97 million paid to NSL Group and/or NSLMP.
75 On 9 June 2023, the plaintiffs served notices of assignment on NSL Group and NSLMP informing NSL Group and NSLMP of the assignment.
76 On 9 June 2023, the plaintiffs made another demand for repayment from Trivett.
77 On 9 June 2023, the plaintiffs made a demand for repayment of the $2.97 million from NSLMP and NSL Group.
78 On 31 October 2024, LBA entered into an assignment deed with the plaintiffs by which it assigned to the plaintiffs:
(a) any and all rights it held in respect of the $2.97 million paid to NSL Group, NSLMP and NSL, alternatively one or more of them, pursuant to the NSL Loan Agreement; and
(b) any and all rights, including causes of action, it held at the general law or in equity as regards to the $2.97 million paid to NSL Group and NSLMP and NSL, alternatively one or more of them.
79 On 6 November 2024, the plaintiffs served notices of assignment on NSL Group, NSLMP and NSL informing NSL Group, NSLMP and NSL of the assignment.
80 On 6 November 2024, the plaintiffs made a demand for repayment of the $2.97 million to NSL Group, NSLMP and NSL, alternatively a demand for repayment of the $2.97 million from one or more of NSL Group, NSL MP and NSL.
81 These facts are all admitted save that the NSL companies say that there are no rights to assign in essence due to the various defences each has to the claims. In any case there is no dispute between the parties that the plaintiffs claim is only as good as the claim that LBA had under the Facility Agreement, the NSL Loan Agreement or for moneys had and received (as the case may be).
82 The plaintiffs as assignee seek to recover the sum of $2.97 million from Trivett on the basis that the $2.97 million paid by LBA on 21 June 2019 constituted an Advance to Trivett within the scope of cl 3.1 of the Facility Agreement.
3.1 Nature
Subject to the terms of this agreement, the Lender [LBA] will make available a revolving cash advance loan facility under which the Lender must, upon request of the Borrower [Trivett], provide Advances to the Borrower up to the amount of Facility Limit by way of cash advance(s) on the Drawdown Date(s) on the terms and subject to the conditions set out in this Agreement. The Advances will be provided to the Borrower by way of bank cheque(s) or by telegraphic transfer payable to the Borrower or as to the Borrower directs in writing.[7]
84 The plaintiffs contend that although LBA and Trivett executed the Facility Agreement on 19 August 2019, the effect of its execution and backdating to 19 June 2019 means that the $2.97 million paid into the Madgwicks Lawyers' trust account on or about 21 June 2019[8] is the provision of an Advance pursuant to cl 3.1. The payment falls within the definition of Advance contained in cl 1. It sits conformably with the definition of Drawdown Date(s) (which) 'means the date on which an Advance is or is proposed to be made and includes the Initial Drawdown Date'. The Initial Drawdown Date (is) '(means) the date of the first Advance under this Agreement being the date specified in item 2 of Schedule 1'. The date specified in item 2 of Schedule 1 for the Initial Drawdown Date is 'by no later than five (5) Business Days after the later of the date of this Agreement and the date of satisfaction of the Conditions Precedent'. 'Conditions Precedent' in turn is defined as meaning 'each of the conditions precedent set out in Schedule 2'. The list of conditions appears under the heading 'Part A - Initial Advance Conditions Precedent'. The conditions specified a range of matters. Some had no application (e.g., items 4 and 8). Others, such as items 2 and 6 contemplated the provision of documentation or information to the lender. Others contemplated the lender being satisfied about certain matters (e.g., items 1 and 5). The plaintiffs did not lead any evidence of satisfaction of the conditions precedent. It is common ground that the 'Security' at least in the form of the Limited Guarantee and Indemnity was not in fact executed by the guarantors. Unless the conditions precedent were satisfied or the parties agreed that they were satisfied or their satisfaction was waived by LBA, the Initial Drawdown Date could never come about. Whilst the date of the Facility Agreement is 19 June 2019, the Initial Drawdown Date is the later of this date and the conditions precedent satisfaction date. The $2.97 million payment made on 21 June 2019 was made no later than five days after the date of the Facility Agreement, 19 June 2019, but unless satisfaction of the conditions precedent occurred or was waived or was agreed to have taken place, prior to or by 19 June 2019, the payment made on 21 June 2019 could not have been the first Advance, being the Advance made on the Initial Drawdown Date.
85 The plaintiffs submit that the effect of the backdating of the Facility Agreement is that the parties intended that its terms would have a retrospective operation and apply to the 21 June 2019 payment.
86 Among other cases, the plaintiffs point to the observations of Hall J of the Supreme Court of New South Wales in Dong v Monkiro[9] ('Dong'). In Dong, the plaintiff sought to recover a loan made to the first defendant alleged to have been made pursuant to a deed dated 11 February 2000. The sum sought to be recovered was $1.1 million. Of the payments which made up the $1.1 million, all were made prior to the date of the loan deed. The recitals recorded that the investor had agreed to make a loan to the developer, whilst cl 2 of the loan deed provided that the investor shall lend the developer a sum of $1.1 million on the date of the deed in respect of which $287,360 had been paid to the developer. One of the defences advanced by the borrower (developer) was that no moneys were advanced under the deed and that therefore there were no obligations to pay in accordance with the deed's terms. In effect, the first defendant's case was that the payments which preceded the date of the deed did not fall within its ambit.
87 His Honour found that the antecedent payments fell within the ambit of the deed stating the following:[10]
In principle, it has been observed, it should be open to the parties to a contract to agree upon the date (including a date in the past) from which their legal relations commenced to have effect and that it should be open to the courts to enforce that agreement: Gilsan (International) Limited v Optus Network Pty Limited (No 2) [2005] NSWSC 38.
On the unchallenged evidence, by executing the Loan Deed at the time they did, the plaintiff and the first defendant plainly intended that all rights and obligations as between them with respect to the loan advances for the Rena Street project should be governed by the provisions contained in the Deed. The terms of the Deed reflect the retrospective nature of the Deed's operation and indeed one can additionally imply a term giving it retrospective operation.
The law has adopted a practical approach to the operation of commercial contracts having regard to earlier dealings between contracting parties. The law does not assume that acceptance of an offer cannot have retrospective effect so as to make the contract apply to things done earlier in anticipation of the contract. In Trollope & Colls Limited v. Atomic Power Constructions Limited (1962) 3 All ER 1035, Megaw, J. stated:-
... there is no principle of English law which provides that a contract cannot in any circumstances have retrospective effect, or that, if it purports to have, in fact, retrospective effect, it is in law a nullity. If, indeed, there were such a principle, there would be many Mercantile contracts which would, no doubt, to the consternation of the parties, be nullities. Frequently in large transactions a written contract is expressed to have retrospective effect ...: and this in cases where the negotiations on some of the terms have continued up till almost, if not quite, the date of the signature of the contract. The parties had meanwhile been conducting their transactions with one another, it may be for many months, on the assumption that a contract will ultimately be agreed on lines known to both the parties, though with the final form of various constituent terms of the proposed contract still under discussion. The parties have assumed that when the contract is made - when all the terms have been agreed in their final form - the contract will apply retrospectively to the preceding transactions. Often, as I say, the ultimate contract expressly so provides. I can see no reason why, if the parties so intend and agree, such a stipulation should be denied legal effect.
88 On a number of occasions, the NSL companies[11] submitted that the plaintiffs were seeking to advance a claim which went beyond their pleaded case. I do not accept that. The plaintiffs' case is that Trivett is liable under the Facility Agreement for $2.97 million. The $2.97 million is obviously a reference to the $2.97 million paid into the Madgwicks Lawyers' trust account on 21 June 2019. The only basis on which Trivett could be liable under the Facility Agreement is if the $2.97 million payment falls within the ambit of the Facility Agreement and the only basis on which it could have so fallen was if it fell within the scope of cl 3.1.
89 On occasion the plaintiffs referred to the $2.97 million paid to Madgwicks Lawyers on 21 June 2019 as an advance. To the extent to which this means that as events stood on 21 June 2019 this 'advance' (small 'a') was a small 'a' advance to Trivett (or one of the other NSL companies) it could be apt to confuse as it purports to characterise a fact, namely the payment to Madgwicks Lawyers in a particular way and there is some controversy as to its character at that date and as to whose benefit it was paid. The same applies with respect to the character and beneficiary of the payment made from the Madgwicks Lawyers' trust account to the vendor's account on 2 August 2019. The only issue which is relevant to the Facility Agreement Claim is whether the payment made into the Madgwicks Lawyers' trust account on 21 June 2019 is an Advance (capital 'A') within the meaning of the Facility Agreement dated 19 June 2019 but in fact executed on 19 August 2019. I do not accept, however, that any consequence follows from such a minor and irrelevant arguable infelicity in nomenclature.
90 In contrast, Trivett's submissions appeared to depart from its pleaded defence, although nothing turns on this either.
91 Paragraph 25M28 of the Sixth Further Amended Statement of Claim filed 2 December 2025 ('6FASOC') reads:
On 30 June 2019, being the first Interest Payment Date after 21 June 2019 under the Facility Agreement, Trivett failed to pay LBA interest at the Standard Interest rate of 15% per annum on the $2,970,000 which had accrued, and has continued to accrue on a daily basis, since the advance of $2,970,000 on 21 June 2019.
92 In the responsive paragraph of the defence filed by NSL Group, NSLMP and Trivett to the 6FASOC filed 11 December 2024 ('Defence to the 6FASOC'),[12] they admit that Trivett failed to pay interest to LBA, referred to paragraphs 25N1 to 25Q3 for the reasons as to why there was no obligation to do so (which raised Trivett's total failure of consideration and repudiation and discharge/damages for breach defences).[13] They then stated that 'the Facility Agreement did not, in fact, exist as of 30 June 2019, such that no interest could have been payable on that date' but then importantly stated 'specifically say that no advance was ever made by LBA to Trivett whether under the Facility Agreement or at all'.[14]
93 A fair reading of the Defence to the 6FASOC is that Trivett denied that it ever assumed any liability under the Facility Agreement or otherwise with respect to the $2.97 million.
94 In contrast, in the NSL companies' outline of opening submissions filed 28 January 2025, they say that it has never been denied that by Trivett's entry into the Facility Agreement, it assumed liability subject to the terms of the Facility Agreement, for repayment of the sum of $2.97 million paid into the Madgwicks Lawyers' trust account. The basis on which Trivett assumed that liability is not further explained in the outline.
95 Trivett argues that by entering into the Facility Agreement it assumed liability subject to the terms of the Facility Agreement but received no Advance pursuant to that agreement because the payment made to Madgwicks Lawyers on 21 June 2019 had been paid by LBA to NSL (or NSL Group or NSLMP). Trivett argues that its liability was a form of concurrent liability, or one akin to that of a guarantor who assumed a liability for repayment of the $2.97 million already paid to one of the NSL companies but only did so in consideration of the promise of further advances to Trivett, which in the result were not made.
96 The critical question is whether the execution and backdating of the Facility Agreement to 19 June 2019 had the effect that the payment made into the Madgwicks Lawyers' trust account on 21 June 2019 constitutes an Advance within the meaning of cl 3.1 of the Facility Agreement.
97 Whether that is so turns on what reasonable business people would have understood cl 3.1 to mean. This will in turn require consideration of the language used by the parties, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.[15] The meaning of cl 3.1 therefore must be ascertained in the language the parties have used, considered in the light of the surrounding circumstances and the object of the contract. As the High Court stated in Pacific Carriers Ltd v BNP Paribas:[16]
...the meaning of commercial documents is determined objectively: The construction of the letters of indemnity is to be determined by what a reasonable person in the position of Pacific would have understood them to mean. That requires consideration, not only of the text of the documents, but also the surrounding circumstances known to [the parties], and the purpose and object of the transaction.[17]
98 Once it is appreciated that the operative date for the purposes of determining the parties' rights and obligations is 19 June 2019, the date of the Facility Agreement, it most likely follows that the parties intended that the payment made to the Madgwicks Lawyers' trust account on 21 June 2019 was an Advance within the ambit of cl 3.1 of the Facility Agreement. Subject to any complications arising from the conditions precedent issue earlier noted,[18] the making of the payment on 21 June 2019 falls within the scope of cl 3.1 on its terms having regard to its intended retrospective operation.
99 This is consistent with parties' intention which can be inferred from the following matters known to both:
(a) First, from 21 June 2019 until at the latest 2 August 2019, LBA and the NSL companies including Trivett intended that the $2.97 million to be paid into the Madgwicks Lawyers' trust account and held there until a formal loan agreement was entered into by LBA with one of the NSL companies (and would in the meantime satisfy the vendor that funds were available to pay the deposit under any contract of sale).
(b) The moneys were paid out of the Madgwicks Lawyers' trust account on 2 August 2019 to the vendor to satisfy the obligation of NSLMP to pay the deposit.
(c) Between about 21 June 2019 and the execution of the Facility Agreement on about 19 August 2019, the parties communicated with respect to the proposed terms of the Facility Agreement. However by at least 6 August 2019, it was contemplated by the NSL companies including Trivett that the $2.97 million paid into the Madgwicks Lawyers' trust account would be treated as having been provided by LBA to Trivett and then by Trivett to NSLMP. So much is implicit from the content of the email from the accountant, Mr Cuzzupi to Joshua Balsim and Tony Balsim on 6 August 2019 which attached a Moonee Ponds feasibility cash flow and advised that the cash flow would be sent to Mario Charisiou that day to finalise the loan agreement. The cash flow, among other things, referred to financing to be provided by Trivett to NSLMP which included the $2.97 million the subject of the payment by LBA to the Madgwicks Lawyers' trust account on 21 June 2019. Whilst there is no direct evidence that a copy was provided that day to Mario Charisiou, there is every reason to infer it was. That was Mr Cuzzupi's intention; it appears that Mario Charisiou wanted it as part of the materials needed to finalise the loan agreement. It was evidently important for the lender to know when the drawdowns would be needed and when and how its borrower, Trivett, would be able to meet its interest and repayment obligations. It is also implicit from Mr Cuzzupi's further email on 7 August 2019. It is reinforced by the provision of a draft of the Facility Agreement which specified a facility limit of $18.5 million, between LBA and Trivett, which it can be inferred included the $3 million deposit which had been paid. That it included the $3 million deposit is apparent from, among other things, the cash flow statement which referenced total funds required of $17.5 million from which there had been various deductions including the deposit of $3 million. The $3 million deposit therefore represented a subset of the $17.5 million required which was related to and constituted the majority of the proposed facility limit of $18.5 million.
(d) Further, and noting that it is common ground that the Facility Agreement had not been executed prior to 19 August 2019, both LBA's Mario Charisiou and Joshua Balsim from Trivett[19] were mindful that it should be backdated. In Mario Charisiou's email to Joshua Balsim of 19 August 2019, he referred to a desire that the Facility Agreement be signed and dated two weeks ago (which would backdate it to 5 August 2019) which was the date of execution of the asset sale agreement and contract of sale. However, the agreement when executed bore the date 19 June 2019 and not 5 August 2019. There is no direct evidence as to why this date was chosen and why the parties made the deliberate choice not to date it 5 August 2019. The payment into the Madgwicks Lawyers' trust account on 21 June 2019 would not have fallen within its terms had it borne the 5 August 2019 date. The most likely inference is that LBA and Trivett recognised that it was necessary to backdate it to 19 June 2019 and not 5 August 2019 so that its terms would apply to the payment into the Madgwicks Lawyers' trust account on 21 June 2019.
100 By backdating the Facility Agreement to 19 June 2019, the payment made on 21 June 2019 fell within the ambit of an Advance and hence within the scope of cl 3.1 of the Facility Agreement. It did so because it fell within the definition of Advance, regardless of whether it was the first Advance or not. Alternatively, the better view is that it in fact was the first of the Advances and that it was made on the Initial Drawdown Date because the parties agreed that the conditions precedent were taken to have been satisfied as at the date the Facility Agreement bore, namely 19 June 2019. Hence, the payment on 21 June 2019 constituted the first of the Advances being the Advance made on the Initial Drawdown Date which was the Advance made no later than five business days after the later of the date of the Facility Agreement (that is, 19 June 2019) and the date of satisfaction of the conditions precedent.
101 The only reasonable inference that can be drawn from the decision by LBA and Trivett to backdate the Facility Agreement to 19 June 2019 (and not date it on the date it was executed or some other date such as 5 August 2019) was to ensure that the payment made into the Madgwicks Lawyers' trust account of $2.97 million on 21 June 2019 constituted the first Advance made on the Initial Drawdown Date. The backdating therefore had a retrospective effect such as to bring the payment made on 21 June 2019 within the scope of cl 3.1. Necessarily, and for this to be so, it must also be inferred that LBA and Trivett agreed that they would treat the conditions precedent as having been satisfied on the date the agreement bore and hence that the payment made 21 June 2019 would be one made by no later than five business days after the date of the Facility Agreement (19 June 2019). If the parties' intention was otherwise with respect to the conditions precedent, there could never be a first Advance under the Facility Agreement because the conditions precedent would not have been satisfied and hence the Initial Drawdown Date, which was the date of the first Advance, would never arise. Such an outcome would be one inimical to what reasonable business people would have intended, and would have undone what the parties sought to do by the conscious decision to backdate the Facility Agreement to 19 June 2019. Alternatively, the 21 June 2019 payment was the provision of an Advance made on (a) Drawdown Date, being 'the date on which an Advance is (or is proposed to be) made' which includes the Initial Drawdown Date. On that analysis, even if the conditions precedent complication meant that there could be no first Advance made on the Initial Drawdown Date, there was nevertheless an Advance made on a Drawdown Date, falling within the scope of cl 3.1.
102 It would have been an easy matter for one of Trivett's directors to have given evidence about the circumstances of the backdating of the Facility Agreement. Trivett chose to not lead any evidence about this matter. The strength of the evidence relied upon to establish a particular fact is to be assessed in context which includes the ease with which a party may adduced evidence of that fact.[20] The fact that no-one from Trivett gave evidence as to why there was a conscious choice to date the Facility Agreement 19 June 2019 provides further support for the inferences I have drawn from the backdating as to the parties' intentions.
103 It follows therefore that the backdating of the Facility Agreement to 19 June 2019 had the effect of bringing the 21 June 2019 payment into the ambit of an Advance made pursuant to cl 3.1 of the Facility Agreement.
104 On that basis, the $2.97 million formed part of the 'Loan Balance'.[21] If it formed part of the Loan Balance, then Trivett became liable pursuant to cl 5.1 to pay interest in arrears on the Loan Balance for each 'Interest Period'[22] until it becomes due and payable with such accrued interest to be paid on each 'Interest Payment Date' (which is defined as being in respect to each Advance, the last day of each calendar quarter). Thus on 30 June 2019, 30 September 2019 and thereafter, Trivett became liable under cl 5.1(a) to pay interest on the Loan Balance on each Interest Payment Date.
105 In contrast, there is no basis to interpret the Facility Agreement as somehow imposing a liability on Trivett as a quasi-guarantor with respect to a pre-existing liability on the part of one of the NSL companies. There is nothing in the Facility Agreement which supports that characterisation. There is no provision in the Facility Agreement by which Trivett became liable unless an Advance was provided to it within the meaning of cl 3.1.
106 If Trivett 'assumed a liability' under the Facility Agreement, as it concedes, then it can only be so because the 21 June 2019 payment into the Madgwicks Lawyers' trust account was an Advance to Trivett pursuant to cl 3.1.
107 As noted earlier, quite how Trivett 'assumed a liability' under the Facility Agreement otherwise than pursuant to cl 3.1 was not made clear. The argument seemed to be one which involved a comparison between Trivett's position prior to execution of the Facility Agreement where it had no liability, but the payment had been made by LBA into the Madgwicks Lawyers' trust account on 21 June 2019, and one after execution where the effect of execution on or around 19 August 2019 and back dating it to 19 June 2019 was to render Trivett liable under the Facility Agreement for the payment into the trust account (at least on the plaintiffs' account).
108 This argument elides some sort of antecedent agreement between LBA and one of more of the NSL companies including at least Trivett, on say 18 August 2019 with the Facility Agreement itself. The earlier 'agreement' was one that Trivett would execute the Facility Agreement in the expectation that by doing so it would then become entitled to the rights and obligations (such as the right to call for further Advances and the obligation to pay the Loan Balance which would include the $2.97 million) that arise under the Facility Agreement once executed. This antecedent agreement, to the extent to which it gave rise to any enforceable rights and obligations (which may be doubtful), was then fully performed or merged in the Facility Agreement once it was executed.
109 This quasi-guarantee characterisation is important for the next stage of Trivett's argument which is to the effect that no consideration moved from LBA to Trivett because the only consideration was the promise of further Advances which were not provided, or alternatively, that the only consideration provided was that to a third party (such as to NSL or NSL Group or NSLMP) and that this constituted past consideration. The premise of this argument is that the payment to Madgwicks Lawyers on 21 June 2019, which was then appropriated on 2 August 2019 to the benefit of NSL (on the NSL companies' case) or NSL, NSL Group or NSLMP (on the plaintiffs' case), was not consideration provided to Trivett but to the entity which received the benefit of the payment on 2 August 2019.
110 There is a related limb to this argument. The NSL companies say that the only way in which the plaintiffs can avoid this outcome is if their plea in paragraph 25N1 of the Reply to the Amended Defence of the Tenth to Thirteenth Defendants filed 14 September 2023 ('Reply') is made good. That plea reads 'the effect of Trivett ... agreeing to execute and backdate a copy of the Facility Agreement was to assume sole joint liability for the repayment of the $2,970,000 paid by LBA into the trust account of Madgwicks Lawyers, a condition of which was the release of NSL Group and [NSLMP] from any liability for repayment to LBA'. The NSL companies point out that the only agreements sued upon by the plaintiffs are the Facility Agreement and the NSL Loan Agreement, none of which contain such a condition (or even are alleged to contain such a condition).
111 The quasi guarantee characterisation underpins Trivett's reliance on McKay & Anor v National Australia Bank Limited[23] ('McKay'). McKay was a case where a guarantor provided a guarantee in consideration of the bank, at the request of the guarantor, making loans and advances or providing banking accommodation to the customer and/or in consideration of the bank, at the request of the guarantor, forbearing to enforce immediate payment of moneys (if any) now due and owing by the customer to the bank. There was no argument advanced to the effect that the bank provided consideration by way of forbearance to sue at the request of the guarantor. It was common ground that no further loans or advances were made by the bank to the customer (or the guarantor) after the guarantee had been taken. The Court of Appeal allowed an appeal against the trial judge's decision entering judgment in favour of the bank against the guarantor. Winneke P held that the mere recitation in a document of guarantee that the guarantee was given in consideration for 'advances to be made' will not be sufficient to support the guarantee if the evidence demonstrates that no such advances were or were intended to be made.[24] Further that a guarantee given to secure a debt already incurred but unsupported by any further consideration will fail for want of valuable consideration.[25]
112 In McKay the guarantee was expressly provided by a guarantor (not a principal borrower) and was in respect of the bank making loans and advances or providing banking accommodation to the customer. Because the bank did not provide loans and advances or provide banking accommodation to the customer or otherwise forbear at the request of the guarantor, the guarantee did not respond.
113 McKay is readily distinguishable as is the other guarantee case relied upon by Trivett, Scott v Forster Pastoral Co Pty Ltd,[26] for the same reasons_._
114 As noted above, the execution of the Facility Agreement meant that Trivett was a borrower, not a guarantor and the effect of its backdating was that the payment made 21 June 2019 was an Advance to Trivett within the meaning of cl 3.1. Hence consideration was provided and the initial Advance formed part of the Loan Balance for which Trivett became liable under the terms of the Facility Agreement.
115 Trivett's related argument about there being no release of the NSL Group and NSLMP is no answer. It is clear that the Facility Agreement did not contain any such release. NSL Group and NSLMP were not parties; the Facility Agreement does not contain any such term and there is an entire agreement clause.[27] But this is of no consequence if the effect of the Facility Agreement as executed and backdated was to bring the 21 June 2019 payment within its confines as an Advance to Trivett. This was consideration provided to Trivett.
116 Trivett's submission that it became liable under the Facility Agreement but did not receive any Advance under that agreement falls away if the effect of execution and backdating is that the 21 June 2019 payment constitutes an Advance within the meaning of cl 3.1.
117 On that basis, many of the issues raised by Trivett in defence to the plaintiffs' claim fall away.
Facility Agreement wholly executory and hence unenforceable
118 Trivett otherwise submits that the Facility Agreement remained entirely executory at all times up to and including 11 October 2019, that LBA was unable to perform and did not perform any of its obligations under the Facility Agreement and that accordingly there was a total failure of consideration such that LBA and hence the plaintiffs are unable to enforce the Facility Agreement.
119 There are a number of premises which underlie this argument. First, that the only consideration provided to Trivett under the Facility Agreement was the promise of future advances (i.e. not the 21 June 2019 payment). I have rejected this argument which is sufficient to dispose of this submission. Secondly, that the effect of the failure to provide the future advances, which is said to be the basis on which Trivett entered into the Facility Agreement, means that the Facility Agreement is unenforceable. In support of this argument, Trivett calls in aid restitutionary notions of the entitlement of a payer to restitution of payments made in certain circumstances.
120 In support of this submission Trivett drew attention to cases such as McRae v Commonwealth Disposals Commission[28] ('McRae'), Bell v Lever Brothers Ltd[29] ('Bell'), David Securities Pty Ltd v Commonwealth Bank of Australia[30] ('David Securities'), Baltic Shipping Co v Dillon,[31] and Dargamo v Avonwick Holdings Limited[32] ('Dargamo') and relied on a process of analogous reasoning with those cases and certain other imagined fact scenarios.
121 None of those cases bear on the issues in this case. In calling in aid the restitutionary cases, Trivett asserted that had it paid interest, Trivett would have been entitled to restitution of the interest paid and that resisting performance as it now seeks to do arises on a similar basis. Again by way of analogy, Trivett submits that acceptance of the plaintiffs' case means that if A contracted to buy 100 widgets from B for $10,000, A would still be required to pay even if B could not deliver and that A's remedy would be to sue for damages.
122 These examples expose the limitations (and in this case, inaptness) of analogous reasoning. Trivett did not make payment of interest. It was only required to do so because the payment of 21 June 2019 fell within the ambit of cl 3.1 as it was an Advance within the meaning of that clause. It is inutile to analyse a circumstance which did not happen through some prism which depends on a different agreement.
123 The widgets example is similarly not to the point. A contract will often involve a bundle of promises; some executory; others not. The time for performance of the executory promises will ordinarily be set out by the terms of the contract; thus, it will often be the case that the time for the buyer to pay the price for the goods will be on delivery. It might be the case for reason that the buyer is required to pay the price upfront and if the seller fails to deliver, the buyer will then have an action of some kind either for damages for non-delivery of goods or perhaps in certain circumstances for recover of the price paid. But none of this means that acceptance of the plaintiffs' case is equivalent to Trivett's imagined widgets scenario. The plaintiffs are suing to enforce a legally enforceable contract which has not been discharged; nothing more or less. To the extent to which Trivett's case is one which says that the Facility Agreement is unenforceable in the sense that the consideration is illusory, that argument is rejected as well. Aside from the fact that the 21 June 2019 payment was an Advance within the ambit of cl 3.1, the promises made by LBA included making available a facility as from 19 June 2019. There is no suggestion that the facility was not made available or in some way did not exist on that date, such as to render the entire bargain some form of illusion.
124 The aspects of the reasons in McRae relied upon were those referring to Bell and Couturier v Hastie.[33] Those cases referred to a contract not being enforceable where one party is not able to supply the very thing the party contracted to supply. They all turn on the particular terms of the contract under consideration and/or where a payment has been made and the consideration for the payment has not been forthcoming. The cases turn on an analysis of the contract in question and the relief sought and by whom.
125 Nor does David Securities assist, where a payer was able to recover payments made under a mistake where the consideration for the payment was identifiable and the contract did not provide for the circumstance which resulted. There was no payment made here and even allowing in Trivett's favour for the appropriateness of the analogy between an assumption of a liability and the making of a payment, the consideration is not confined to future advances as Trivett submits.
126 Nor is Dargamo of assistance. In Dargamo, the Court of Appeal in the United Kingdom examined the proper scope and application of the principle of unjust enrichment in circumstances of an alleged total failure of consideration or basis. The critical question was whether a claim in unjust enrichment could succeed in the context of the parties' contractual allocation of risk under a valid and subsisting contract. The unjust enrichment claim involved a claim for recovery of the sum of US$82.5 million paid as part of a total consideration of US$950 million payable under a share purchase agreement for the sale and purchase of shares in Castlerose Limited. Lady Justice Carr preferred to adopt the terminology of 'failure of basis' as opposed to 'failure of consideration', emphasising that the core concept of 'failure of basis' was that a benefit has been conferred on a joint understanding that the recipient's right to retain it is conditional and that if the condition is not fulfilled, the recipient must return the benefit.[34]
127 Carr LJ noted that it was common ground in that case that the meaning of 'failure of basis' extended beyond failure of promissory consideration payable under a contract or a failure of contractual counter-performance.[35]
128 Whilst Dargamo is interesting; it has limited relevance to the issues in this case given the conclusion that the payment fell within the ambit of cl 3.1 and as such it constituted an Advance under the Facility Agreement with the concomitant rights and obligations which arose under that agreement. If it was not such, then Trivett would have no exposure to the obligations which otherwise arose under the Facility Agreement.
129 To the extent to which Dargamo has any relevance, it assists the plaintiffs not Trivett. This is because the Court of Appeal considered that the contract between the parties was subsisting and its terms were inconsistent with the framing which underpinned the claimant's restitutionary claim. As the plaintiffs' noted, the Facility Agreement dealt with LBA's failure to provide the promised further funds. It did so by stipulating in cl 10.4 that in that event, LBA would incur liability under the Facility Agreement pursuant to cl 10.4 for 'all loss and damage suffered by [Trivett] relating to or arising from [LBA's] failure to provide the Advances'. By reason of the contract providing for the contingency which resulted there is no room for restitutionary analogues.
LBA's wrongful repudiation of the Facility Agreement
130 One aspect of Trivett's defence that I do however accept is that LBA repudiated the Facility Agreement. Its failure to provide the funds the subject of the drawdown notice sent by Trivett in the amount of $14 million on 7 October 2019 and the letter from LBA's solicitor, Mr Galatas, to Tony Balsim on 11 October 2019 by which LBA advised that the funding that LBA had represented was available under the Facility Agreement was no longer available evinced a clear intention to no longer be bound by the Facility Agreement and as such constituted a repudiation by LBA of the Facility Agreement.
131 A repudiation not accepted by the innocent contractual party is of no consequence and as such Trivett must be able to point to an acceptance of the repudiation and does so by reference to its statement to that effect in its Defence to the 6FASOC.[36]
132 Whilst the plaintiffs are correct in noting that Trivett recognised the subsistence of the Facility Agreement and threatened to enforce it by its solicitors letter of 18 October 2019, I accept Trivett's submission to the effect that the repudiation was ongoing and came to be accepted by Trivett upon the filing of the Amended Defence of the Tenth to Thirteenth Defendants to the Fourth Further Amended Statement of Claim filed 9 August 2023 ('9 August 2023 Defence'). The plaintiffs were not able to point to any act of election on the part of Trivett prior to the acceptance of the repudiation conveyed by the filing and service of this defence.
133 I accept therefore that Trivett brought the Facility Agreement to an end upon the filing and service of the 9 August 2023 Defence.
134 However, that conclusion on its own is of limited assistance to Trivett. Its effect is to discharge both LBA and Trivett from any unperformed contractual obligations at the time of termination (i.e. 9 August 2023). However, the termination operates prospectively; it does not effect a rescission of the agreement ab initio and does not affect any of the parties' accrued rights which arose prior to termination.
135 By the time of termination, LBA already had accrued rights to the payment of interest and other costs including default interest (cl 5), and the right to have the Loan Balance repaid and discharged on the Repayment Date (cl 6.1). These accrued rights are unaffected by the termination of the Facility Agreement.
136 As such, Trivett's assertion that it validly terminated the Facility Agreement upon the service of the 9 August 2023 Defence goes nowhere unless it is able to offset any damages that it has suffered as a consequence of the loss of the bargain and LBA's wrongful repudiation of that agreement.
137 In that respect, Trivett submits that Trivett is entitled to offset against liability that it has to LBA and therefore to the plaintiffs under the Facility Agreement, the loss and damage it suffered as a consequence of LBA's wrongful termination of the Facility Agreement which is the amount equivalent to its liability for amounts under the Facility Agreement.
138 There are three premises which underlie the submission; the first is that Trivett's liability to LBA is the equivalent of wasted expenditure reliance damages; the second is that reliance damages of this nature are recoverable as loss of bargain damages for breach of contract and the third is that Trivett has suffered loss and damage in an amount equivalent to its liability under the Facility Agreement.
139 Trivett relies upon Commonwealth v Amann Aviation[37] ('Amann Aviation') and Cessnock City Council v 123 259 932 Pty Ltd[38] ('Cessnock') including the reasoning of the Court of Appeal in New South Wales in 123 259 932 Pty Ltd v Cessnock City Council[39] ('123 v Cessnock'). It submits that 123 v Cessnock establishes, as a general proposition, a plaintiff (here Trivett) has a reliance interest arising from expenditure reasonably incurred in reliance upon the defendant's (here LBA's) performance of its contractual obligations[40] and argues that the liability assumed by Trivett was assumed in reliance upon LBA's performance of its obligations to advance further funds.
140 Trivett otherwise asserts that the reliance interest is not confined to expenditure required by the contract or required to enable a plaintiff to perform its contractual obligations but extends to any reasonable detrimental change of position by the promisee in reliance upon a defendant's promise.[41]
141 The plaintiffs argue that Trivett's reliance upon the analogy with reliance damages is misplaced; firstly, because the Facility Agreement contains a '[n]o reliance or other obligations and risk assumption' clause in the clearest possible terms at cl 7.4. The plaintiffs also rely upon cl 10.4 '[f]ailure to provide the Facility' submitting that the presence of that clause also supports a submission that Trivett entered into the Facility Agreement not in reliance on LBA's promise to advance further funds but where it had some doubt as to LBA's ability to pay and expressly contracted for a right to seek damages from LBA that were not limited by common law limitations imposed by cases such as Hadley v Baxendale.[42]
142 I do not accept this argument. Clauses like 7.4 and 10.4 may present as evidentiary hurdles in a misrepresentation case but have little role to play in a claim for contractual damages unless by their terms they limit or otherwise exclude by agreement, a species of loss and damage otherwise recoverable at law. These clauses do not have that character. Where a borrower enters into a facility agreement pursuant to which the lender has offered to make available a facility up to a particular limit, it cannot reasonably be doubted that the borrower has entered into that facility agreement in the expectation that the lender would be able to deliver upon that promise. The evidentiary hurdle occasioned by the presence of other clauses in the Facility Agreement such as cls 7.4 and 10.4 are of little moment.
143 The plaintiffs' second argument is of more merit. They argue that reliance damages are not a separate species of loss recoverable by way of damages for breach of contract. Rather, there is an evidentiary presumption which applies in certain circumstances, but not here, which permits wasted expenditure to serve as proxy for the recovery of expectation loss.
144 In Cessnock, the plaintiff sought to recover damages for breach of contract expenditure incurred by the plaintiff in reliance on an expectation of performance of the contract by the defendant. The expenditure was wasted as a result of non-performance of the contract by the defaulting defendant. The case involved a sale contract where the vendor promised to take all reasonable action to apply for and register a plan of subdivision and grant the plaintiff a 30 year lease of land. The plaintiff obtained a licence to enter upon the land in the meantime and proceeded to spend $3.7 million constructing a commercial building on the land. The vendor repudiated the contract resulting in the wastage of the $3.7 million. The plurality[43] noted the long-established orthodoxy that damages for consequential loss for a breach of contract are awarded only to place the plaintiff in the same position as if the contract had been performed.[44] They rejected the proposition that reliance losses and expectation losses are alternative measures of damages between which a plaintiff can elect;[45] as did the separate judgment of Gordon J.[46]
145 The plurality stated the following:[47]
In Australian and English law, therefore, it is not sufficient for recovery of consequential loss suffered by a breach of contract that: (i) the plaintiff spent money in anticipation of, or reliance on, performance of a defendant's contractual obligation; and (ii) that money was wasted or partly wasted after taking account of any benefit obtained by the plaintiff from the expenditure. These two matters are not enough because if the money would never have been recovered on performance of the contract without any breach of contract, then the plaintiff has no consequential loss. It must also be shown that (iii) the money was wasted because of the breach of contract. In other words, the plaintiff would have recovered the money if that obligation had not been breached. The issue in this case concerns the manner of proof in relation to (iii).
The approach described above explains this Court's rejection of the notion that "reliance" losses and "expectation" losses are alternative measures of damages between which a plaintiff can elect. Although labels such as "reliance loss" and "expectation loss" can be unhelpful, when "expectation loss" is used to describe the measure of consequential loss suffered by a plaintiff - by comparing the plaintiff's position after breach with the position they would have been in if the contract had been performed - then it is the only measure of consequential loss. Hence, any award of contract damages that is based on expenditure in anticipation of, or reliance on, performance of a contract has been described as a "'proxy' for", or "species of", recovery of expectation loss: "the idea that protection of the reliance interest is an alternative measure of damages is a myth". The reliance by a plaintiff upon a contract is merely part of an alternative way of proving the plaintiff's loss, that is, the position that they would have been in if the contract had been performed.
146 The plurality rejected any notion that that there should be a 'presumption'[48] that in a commercial contract the non-breaching party expects at least to recoup their outlay.
147 Cessnock reaffirmed that it remains for the plaintiff to prove loss and damage. The High Court acknowledged however that an evidentiary presumption or principle might arise in certain circumstances to allow the measure of expectation loss by reference to wasted expenditure, describing the position as follows:[49]
The legal onus to prove loss arising from a breach of contract rests on the plaintiff as the party seeking to recover damages. However, where a breach of contract has resulted in (namely, caused or increased) uncertainty about the position that the plaintiff would have been in if the contract had been performed, the discharge of the plaintiff's legal burden of proof will be facilitated by assuming (or inferring) in their favour that, had the contract been performed, then the plaintiff would have recovered the expenditure reasonably incurred in anticipation of, or reliance on, the performance of the contract. The strength of this assumption or inference, and thus the weight of the burden placed on the party in breach to adduce evidence to rebut the inference in whole or in part, will depend on the extent of the uncertainty that results from the breach. Expressed in this way, this facilitation principle is tied to its rationale, namely the uncertainty in proof of loss occasioned to the plaintiff by the defendant's breach.
148 In Cessnock, the facilitation principle was applied in view of the significant uncertainties for a proof of loss resulting from the vendor's breach which included uncertainties as to whether the land could be developed once the 30 year lease was granted, whether there would be an increase in business for the plaintiff's airport business and hangar space and as to how the plaintiff would ultimately operate its business.[50] These uncertainties made the plaintiff's proof of loss exercise difficult to the point of impossible and accordingly the plaintiff benefited from a strong presumption that had the contract been performed, then the respondent would have recovered at least the expenditure they reasonably incurred in anticipation of or reliance on the performance of the contract. The vendor was not able to rebut that evidentiary presumption.
149 These difficulties are not applicable here. It is true that it may be difficult for a borrower to establish loss where a lender fails to provide promised funds. That difficulty however is one which arises because often there is no loss. A borrower who does not receive a promised $100,000 loan does not suffer a loss of $100,000. Whilst the borrower will not have received the $100,000, this is offset by the fact that the borrower does not have a liability to repay the $100,000. On the borrower's capital account the net position is neutral. A common form of loss sought to be recovered is where the borrower finds a replacement lender but the cost of borrowing, such as the interest rate, is higher. This will generally present little controversy and no difficulties of proof. Recovery of foreseeable consequential loss beyond loss of this nature may sometimes be more controversial because the consequential loss might not have been in the contemplation of the parties when the contract was made. The presence of clauses such as cl 10.4 cater for this situation.
150 Here there was no evidence of any increased cost of borrowing and no obvious reason as to why that evidence could not have been led had replacement borrowing been obtained at higher cost. In paragraph 25O1 of the 9 August 2023 Defence,[51] by which the NSL Parties pleaded, inter alia, that they had accepted LBA's repudiation of the Facility Agreement, Trivett particularised that it sought to obtain and in fact obtained substituted funding from Newground Mooney Ponds Pty Ltd. This notwithstanding, Trivett led no evidence at all of any increased funding cost or any other loss.
151 Trivett submitted that it would have been required to have called evidence of the fate of any development of the site, assuming that the contract of sale and asset sale agreement had settled, and the profits that would have been earned by the development. The loss of profits that would have been earned had the development been completed were not those of Trivett. Trivett was not undertaking the development. Those profits were only relevant to the extent to which they effected the capacity of NSLMP, who was the party to whom Trivett proposed to lend the money, to repay the funds lent to it by Trivett.
152 These considerations were not present here. It seems that Trivett did not need to secure replacement borrowings. If it did, there is no evidence of it. In fact, the vendor repudiated the contract of sale and the asset sale agreement, as held by this Court, and NSLMP obtained an order that the deposits of $2.97 million be repaid to NSLMP by Ardmillan[52] and further that Ardmillan pay loss of bargain damages to NSLMP of $1,011,060.62 (which suggests that NSLMP's loss of bargain damages were not too difficult to prove at all).
153 I do not accept therefore that the facilitation principle has any role to play and I therefore do not accept that this 'reliance type' loss serves as a proxy for the expectation losses that are ordinarily recoverable. For completion, if losses of this nature are recoverable, contrary to my view, I do not necessarily see why they need to be confined to wasted expenditure as the plaintiffs argued. Whilst that was the species of reliance loss in Amann Aviation and Cessnock, there doesn't seem to be any reason why the loss (assuming it is recoverable) should be confined to expenditure outlaid as opposed to some other form of measurable detriment. If it were, it would allow recovery of moneys that had been paid but exclude an entitlement to compensation by way of damages for some measurable liability which had not yet fallen due for payment.
154 Even if the analysis is confined to the initial Advance of $2.97 million as opposed to the loss of the promised further borrowings, Trivett's position is no better. It's submission that it suffered loss and damage in an amount equivalent to the sum of its liability to LBA (and hence the plaintiffs) does not engage with the circumstances of the case where Trivett borrowed $2.97 million from LBA, which money was then planned by the NSL companies[53] to be used by NSLMP to pay the deposit. NSLMP paid the deposit. When the transaction with the vendor fell over, NSLMP obtained an order that the deposit be repaid.
155 The argument that Trivett suffered a detriment of $2.97 million when it became liable to LBA under the Facility Agreement does not take account of the fact that its liability to LBA was matched by the receivable which it acquired in the form of its loan to NSLMP. This is an asset of Trivett which offset its liability to LBA.
156 Trivett would have only suffered loss and damage if it was stuck with the liability to LBA but its asset was worthless such as if the loan was written off or worse less if the loan was impaired, and that this loss was a product of LBA's failure to advance further funds. Given that NSLMP obtained an order from this Court that Ardmillan return the deposit paid by NSLMP to NSLMP, this seems unlikely but in any case there is no evidence of it. Such matters were entirely within the knowledge of the NSL companies. No evidence was led to that effect.
157 To conclude, Trivett did not suffer loss because it received the Advance from LBA within the meaning of cl 3.1 of the Facility Agreement which it then on-lent to NSLMP. There is no evidence that Trivett wrote off any of the debt. Further, to the extent to which Trivett suffered loss because it did not receive the further funds that were promised to be lent to it by LBA, there is no evidence of loss led by Trivett that would establish that Trivett's position was worse in net terms than it would have been had it received the further advances.
158 Accordingly, I do not accept that Trivett has established that it has suffered any loss or damage as a result of LBA's wrongful repudiation of the Facility Agreement which it is entitled to set off in extinction of the liability which arose under the Facility Agreement and accrued prior to its termination upon Trivett's acceptance of LBA's wrongful repudiation.
159 Given that LBA's rights were validly assigned to the plaintiffs, the Facility Agreement claim against Trivett succeeds.
160 The disposition of the Facility Agreement claim did not require me to determine the significance or otherwise of alleged post-contractual admissions by Trivett as to its liability under the Facility Agreement.
161 However, given that this point was argued at length, it is appropriate for me to do so.
162 The alleged admissions arose in somewhat unusual circumstances. In the plaintiffs' original iterations of the claims against NSL Group and NSLMP (but not Trivett), the plaintiffs advanced a claim directly against NSLMP and NSL Group seeking to recover the $2.97 million on the basis that NSLMP and NSL Group had engaged in unconscionable conduct by reason of the conduct of James Charisiou which could be imputed to NSLMP and NSL Group. That conduct was said to have caused the plaintiffs to suffer loss and damage in the amount of $2.97 million being the amount paid into Madgwicks Lawyers' trust account by LBA.
163 In the defence of NSL Group and NSLMP to that claim,[54] NSLMP and NSL Group defended the claim on a variety of bases. They pleaded at paragraph 53S(c)(iv), inter alia, that:
[O]n or about 19 August 2019, with a commencement date of 19 June 2019, LBA (as lender) entered into a Facility Agreement with Trivett (as borrower)... by which, inter alia, LBA agreed that Trivett,... assumed liability for repayment of the deposit monies and any interest thereon.
164 NSLMP and NSL Group then went on to plead that the plaintiffs had taken an assignment of LBA's rights under the Facility Agreement and had accordingly adopted the Facility Agreement and elected to proceed on the basis that Trivett had assumed liability for repayment of the deposit moneys.
165 This plea was evidently made by NSLMP and NSL Group as part of its defence to the claim against them that the plaintiffs had suffered loss and damage in the form of the $2.97 million.
166 The plaintiffs' claim as framed in those terms was plagued by difficulties as a consequence of which the plaintiffs' claims against NSLMP and NSL Group, contained in the Third Further Amended Statement of Claim filed 21 October 2022, were struck out[55] and orders were made staying the claims against NSLMP and NSL Group until further order. Further directions were made that if the plaintiffs wished to proceed against NSLMP and NSL Group they would have to obtain leave to file and serve an amended statement of claim.
167 Subsequently, the plaintiffs affected a wholesale reorientation of their claims. The reconfiguration relevantly included the joinder of Trivett as a defendant and causes of action prosecuted by the plaintiffs against NSLMP, NSL Group, Trivett (and later NSL) only as assignees of LBA's rights including, with respect to a claim against Trivett, pursuant to LBA's rights under the Facility Agreement.[56] There was no direct claim by the plaintiffs against any of them.
168 When NSLMP, NSL Group and Trivett (in the one pleading) then filed a defence to the new claim,[57] the defence did not include a repetition of the earlier plea that Trivett had assumed liability for the repayment of the $2.97 million by reason of its entry into the Facility Agreement.[58] Further, the defence included paragraph 25M28(c) (but should be numbered 25M28(d)) in which the defendants 'specifically say that no advance was ever made by LBA to Trivett whether under the Facility Agreement or at all'.[59]
169 In their Reply, the plaintiffs asserted that the new defence sought to resile from an earlier admission and then identified various documents said to amount to an admission. The plaintiffs' complaint that NSL Group, NSLMP and Trivett were seeking to resile from an earlier admission lacks merit. The plaintiffs' earlier pleading advanced an entirely different case. Moreover, the only relevant admission, if there be one, was that of Trivett and the earlier defence was filed only on behalf of NSLMP and NSL Group not Trivett.
170 Nevertheless, it was open to the plaintiffs to identify alleged admissions of liability and seek to rely on those as admissions against Trivett. Trivett's assertion that the plaintiffs were seeking in some way to preclude Trivett running its defence is also without merit.
171 Whether the documents give rise to admissions of any relevant nature is the only question. The documents concerned comprise:
(a) a letter from Madgwicks Lawyers to GPZ Legal dated 18 October 2019;
(b) a letter from Madgwicks Lawyers to Allens dated 6 November 2020;
(c) a letter from Madgwicks Lawyers to Allens dated 10 December 2020;
(d) the affidavit of Mr Goldberg affirmed 11 December 2020;
(e) a letter from Madgwicks Lawyers to Allens dated 15 December 2020;
(f) a letter from Madgwicks Lawyers to Allens dated 7 June 2022; and
(g) the Defence of the Tenth and Eleventh Defendants to the Third Further Amended Statement of Claim filed 21 November 2022.
172 Each of the documents is a document sent and created by Madgwicks Lawyers who were at the time solicitors for NSLMP, NSL Group and Trivett. Each was sent after the entering into of the Facility Agreement. Thus, each of the documents relied upon by the plaintiffs post-dates the contract. The meaning of a written contract and its terms must be determined at the time the contract is made and evidence of the party's subsequent conduct is irrelevant.[60] The rule seeks to avoid the undesirable result that 'a contract meant one thing the day it was signed but by reason of subsequent events meant something different a month or a year later'.[61] It derives from the objective theory of contract: a court's role in interpreting a contract is to ascertain and give effect to the party's objective intention, whereas any post-contractual conduct merely reflects the subjective intention of the parties.[62]
173 The general rule against the use of post-contractual conduct in construing a contract is not however absolute.[63] Only one of the relevant exceptions has any application here. There is authority that in certain circumstances it will be permissible to have regard to post-contractual conduct where such constitutes an admission against interest.[64]
It could happen that an event occurring after a contract was made was used as proof of a matter that is relevant to construction of the contract even on the objective theory of contract. If, for example, a contracting party admitted, after the contract had been made, the truth of some fact that was a relevant part of the context in which the contract had been made, I see no reason why that admission could not be used as part of the means of proof of that background fact.
175 The position is less clear where the evidence in question reveals an opinion as to a question of law or of mixed fact and law.[67]
176 Whilst this will not necessarily render admission based on a matter of law admissible, it will influence the use that can legitimately be made of it. As explained by Brooking J in FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd:[68]
As a matter of legal principle, I can see only one basis on which the subsequent conduct of a party to a contract might be said to bear on its interpretation so as to support a general principle that evidence of conduct by the parties under a contract might be used in its interpretation. That is the principle which allows admissions by words or conduct made by a party to litigation or his predecessor in title to be used against him.
...
The construction of a written contract is a question of law. But it seems that a question of law may be made the subject of an admission....Where, however, the question of law is one of the construction of a written contract that is before the court, it seems to me that the court will derive no as opposed to little assistance in determining that question from the fact that one party or his predecessor in title has made an informal admission on the question. As a matter of strict analysis I would venture the suggestion that the admission, while theoretically available for use, is not admissible because it could not be given any weight at all by the court in construing the contract. It could be given weight if the question for the court was that of the subjective intention of the parties, for a party knows what he intended, but that is not the question...
178 Against that background, I will turn to each of the matters relied upon by the plaintiffs.
Letter from Madgwicks Lawyers to GPZ Legal dated 18 October 2019
The Facility Agreement entered into by our respective clients on 19 June 2019 (Facility) does not provide for the return of any monies advanced to our client until the Repayment date, being 36 months from the Initial Drawdown Date. That date has not passed and as such, the monies are not due.
180 The plaintiffs assert that the sending of this letter constitutes an implicit admission that the $2.97 million payment was Advance within the meaning of cl 3.1 of the Facility Agreement. The fact is whether there was a payment made of $2.97 million. Whether it falls within the ambit of the Facility Agreement or not is a legal question and accordingly the opinion of Madgwicks Lawyers dated 18 October 2019 is of no utility.
Letter from Madgwicks Lawyers to Allens dated 6 November 2020
The $2,970,000 advanced by LBA Capital on 21 June 2020 was advanced to our client pursuant to the Facility Agreement and not otherwise. There was and is no "other arrangement" between our client and LBA Capital and/or Mr Charisiou.
182 This letter appears to have been written by Madgwicks Lawyers on behalf of Trivett. To the extent to which it amounts to an admission that the $2.97 million payment constituted an Advance pursuant to the Facility Agreement, it suffers the same fate as the first letter.
183 To the extent to which it relates to the fact that there was and/or is no other arrangement between Trivett and LBA Capital and/or James Charisiou and that this constitutes a fact, there is no dispute that the only relevant arrangement, if there was any, was that under the Facility Agreement so the alleged admission goes nowhere. To the extent that it matters, the statement is at odds with that part of the Defence to the 6FASOC where NSL Group, NSLMP and Trivett 'specifically say that no advance was ever made by LBA to Trivett whether under the Facility Agreement or at all',[71] but nothing turns on this particularly given Trivett's acknowledgment that it assumed liability under the Facility Agreement.
Letter from Madgwicks Lawyers to Allens dated 10 December 2020
The only payment received by our client, or by any person or entity on its behalf, from or on behalf of LBA Capital in the period 18 June 2019 to 17 October 2019, whether pursuant to a Facility Agreement or otherwise, is the advance of $2,970,000 advanced by LBA Capital on 21 June 2020 under the Facility Agreement referred to in our letter of 6 November 2020...
185 To the extent to which it relates to a fact being the payment received by 'our client or any person or entity on its behalf', the only relevant fact is that there was that one payment and no other. That is not in dispute. Whether the payment is an Advance under the Facility Agreement is a legal question and falls in the same position as the earlier letters.
Affidavit of Richard Gregory Goldberg made 11 December 2020
186 Mr Goldberg, among other things, deposes that he had been instructed by the directors of Trivett to inform the Court as follows:
The only payment received by Trivett, or by any person or entity on its behalf, from or on behalf of LBA Capital in the period 18 June 2019 to 17 October 2019 or otherwise, whether pursuant to a Facility Agreement or otherwise, is the advance of $2,970,000 advanced by LBA Capital on 21 June 2020 under the Facility Agreement...
187 This is an admission of the fact of an instruction on or about 11 December 2020. However, the qualifying phrases like 'or by any person or entity on its behalf' or 'whether pursuant to the Facility Agreement or otherwise', along with it being common ground that there is one payment of $2.97 million made 21 June 2019 which was then transferred to the vendor's account on 2 August 2019, means that any admission of fact is of no significance. The same conclusion applies to the contents of the affidavit as to the earlier three pieces of correspondence.
Letter from Madgwicks Lawyers to Allens dated 15 December 2020
188 The letter stated, inter alia, at paragraph 20 that:
Our client has already maintained that the Facility Agreement remains "on foot"...[O]ur client affirmed the Facility Agreement by serving the default notice dated 14 October 2019...We therefore do not understand how your clients, and those advising them, could ever have doubted the Facility Agreement was other than "on foot".
189 This does not amount to an admission of any relevant fact which is in dispute. It is not disputed that the Facility Agreement remained on foot at the time the letter was sent.
Letter Madgwicks Lawyers to Allens dated 7 June 2022
Secondly, and relatedly, it is obvious that one or more of our clients (we say Trivett Property Partners) will, subject to its previously foreshadowed offsetting claim, remain liable to LBA Capital for $2.97 million even if there was compliance with your client's demand.
191 This again is an implied admission as to a legal matter. If Madgwicks Lawyers or counsel identifies a further basis to resist liability, this letter does not preclude them from advancing it.
Defence of the Tenth and Eleventh Defendants to the Third Further Amended Statement of Claim filed 21 November 2022
192 NSLMP and NSL Group pleaded at paragraph 53S(c)(iv) that:
[O]n or about 19 August 2019, with a commencement date of 19 June 2019, LBA (as lender) entered into a Facility Agreement with Trivett (as borrower) and Asya Balsim and Raffaele Aiello (as guarantor) by which, inter alia, LBA agreed that Trivett, Asya Balsim and Raffaele Aiello assumed liability for repayment of the deposit monies and any interest thereon.
193 This is a defence of NSLMP and NSL Group, not Trivett. It is not an admission of Trivett which is its only relevance. In any event, it is exactly the same position as Trivett now maintains.
194 NSLMP and NSL Group also admit at paragraph 53S5(b)(i) that:
[O]n or about 2 August 2019 the said sum of $2,970,000 was paid from the Madgwicks trust account to Ardmillan (or at its direction) in payment of deposits due from NSL MP under the Ardmillan Place Contract of Sale and the Ardmillan Place Asset Sale Agreement...
195 To the extent to which this amounts to an admission as to a fact, namely the making of the payment on 2 August 2019, it is not in dispute and therefore the admission is of no consequence. To the extent to which it characterises the payment from the Madgwicks Lawyers' trust account on 2 August 2019 as being made by way of payment of deposits due from NSLMP, that too is not in dispute.
196 The failure to state that the payment was made by NSL to NSLMP pursuant to a loan between NSL and NSLMP and then used by NSLMP to pay the deposits, which is now the position advanced by the NSL companies, arguably is an admission of fact by NSLMP to the effect that there was no such loan, but it is too equivocal to constitute an inference of any weight.
197 Overall then, none of the post-contractual documents are of assistance.
198 Given my conclusion that the Facility Agreement claim against Trivett succeeds, it is not strictly necessary to consider the NSL Loan Agreement claim or the moneys had and received claim.
199 Nevertheless, I shall do so in case I am in error in my conclusions on the Facility Agreement claim. The below analysis assumes, contrary to my conclusions, that the payment by LBA into the Madgwicks Lawyers' trust account was not an Advance within the meaning of cl 3.1 of the Facility Agreement.
200 By the NSL Loan Agreement claim, the plaintiffs allege that on or around 20 or 21 June 2019, LBA (as lender), NSL, NSL Group and NSLMP, alternatively one or more of them (as borrowers) entered into an agreement whereby LBA would lend NSL, NSL Group and NSLMP, alternatively one or more of them, the sum of $2.97 million.
201 The plaintiffs allege that the terms of the NSL Loan Agreement comprised:
(a) LBA would advance $2.97 million to NSL, NSL Group and NSLMP, alternatively one or more of them, by way of payment of the same sum into the trust account of Madgwicks Lawyers;
(b) the $2.97 million advanced was:
(i) to be held in the trust account of Madgwicks Lawyers to enable NSL, NSL Group and NSLMP, alternatively one or more of them, to show Ardmillan, the vendor, that one or more of NSL, NSL Group and NSLMP had funds sufficient to pay deposits towards the acquisition of the Property; and
(ii) otherwise was only to be applied towards the acquisition of the Property;
(c) NSL, NSL Group and NSLMP, alternatively one or more of them, were to repay the $2.97 million advanced by LBA on failure of the purpose referred to in (b), alternatively on demand; and
(d) the parties would otherwise agree to the terms governing the conditions on which LBA would advance additional funds to enable NSL, NSL Group and/or NSLMP, alternatively one or more of them, to finance the acquisition of Property and assets associated with the business being run on the site.
202 The NSL Loan Agreement is alleged to be partly in writing and partly to be implied. Insofar as it is in writing, it is said to be contained in four emails, the email from Mr Cuzzupi to Mario Charisiou and others sent 20 June 2019,[72] the email from Mario Charisiou to Mr Cuzzupi and others in response sent 21 June 2019,[73] an email from Mr Cuzzupi to Mario Charisiou, James Charisiou, Joshua Balsim, Tony Balsim and copied to Mr Aiello sent 21 June 2019[74] and an email from Madgwicks Lawyers to Mr Galatas, copied to Tony Balsim, Mr Cuzzupi and Mario Charisiou also sent 21 June 2019.[75]
203 The plaintiffs also refer to subsequent conduct from which it can be inferred that the parties entered into the NSL Loan Agreement. The subsequent conduct identified is:
(a) the payment of $2.97 million into the Madgwicks Lawyers' trust account on 21 June 2019;
(b) the transfer by Madgwicks Lawyers of $2.97 million to the vendor on or around 2 August 2019; and
(c) the execution of the contract of sale and asset sale agreement on or about 5 August 2019.
204 Although I accept that the four emails give rise to an agreement entered into on or around 21 June 2019 between LBA and one or more of the NSL companies, the agreement is a narrower one and not in the terms of the NSL Loan Agreement. The agreement was that LBA would pay $2.97 million into Madgwicks Lawyers' trust account so as to show the vendor that one or more of the NSL companies had sufficient funds to pay the deposits towards the acquisition of the Property. I do not accept that the documents go so far as establishing that on or about that day LBA agreed to lend one or more of NSL, NSL Group and NSLMP $2.97 million. Nor do I believe that the further facts relied upon, namely the payment into Madgwicks Lawyers' trust account, the payment by direction by one or more of NSL, NSL Group and NSLMP that Madgwicks Lawyers transfer the $2.97 million to the vendor and the subsequent entry into by NSLMP of the contract of sale and asset sale agreement give rise to an agreement made on or about 21 June 2019 in the terms of the NSL Loan Agreement.
205 My conclusion follows from an analysis of the content of the writing relied upon.
206 The first email sent 20 June 2019, is one in which Mr Cuzzupi provides Mario Charisiou, James Charisiou, Joshuan Balsim and Tony Balsim with contact details for Madgwicks Lawyers. The email is sent in contemplation of the $2.97 million deposit being paid that day.
207 The second email, being Mario Charisiou's response of 21 June 2019, emphasises that a loan agreement needs to be in place with the purchasing entity with guarantees and that if this is not done the funds should remain in Madgwicks Lawyers' trust account until the loan agreement is in place. Once the agreement is in place, the funds can then be sent to the vendor. Mario Charisiou's email further emphasises his belief that the funds only need to be held in trust to show the vendor that the funds are available so that the parties can 'go to contract' and that this will enable sufficient time to produce the loan agreement.
208 The third email from Mr Cuzzupi to Mario Charisiou and others of 21 June 2019 picks up on Mario Charisiou's suggestion, confirms the identity of the solicitor at Madgwicks Lawyers who will be preparing the loan agreement and advises that the Madgwicks Lawyers solicitor will confirm that the funds will remain in the trust account so as to provide confirmation to the vendor (of the availability of funds) in order that the loan agreement can be finalised over the next few days.
209 The fourth email of 21 June 2019 is Madgwicks Lawyers' response. It confirms the basis upon which the funds will be paid into the Madgwicks Lawyers' trust account, that is to say that the funds will be paid into the trust account so as to show the vendor that funds are held in the trust account in anticipation of payment of the deposit but that they will remain in the trust account and not be transferred until a loan agreement is in place between 'our client and the lending group'.
210 As noted above, these emails establish that on 21 June 2019, LBA and one or more of the NSL companies agreed that the $2.97 million was to be held in the trust account so as to show the vendor that funds were available to pay the deposits but that they would remain in the trust account until such time as a loan agreement was in place.
211 Viewed alone, the emails do not go any further than this. They do not establish that on or around 20 or 21 June 2019 LBA agreed to lend the moneys to one or more of NSL, NSL Group and NSLMP. The only thing agreed was that a payment would be made into Madgwicks Lawyers' trust account to show the vendor that funds would be available but that they would not be disbursed until a formal loan agreement was entered into.
212 The three critical facts implicit in the further matters relied upon by the plaintiffs are the making of the payment into the Madgwicks Lawyers' trust account of $2.97 million on 21 June 2019, the transfer by Madgwicks Lawyers of the $2.97 million to the vendor on or around 2 August 2019 and the execution of the contract of sale and asset sale agreement by NSLMP on 5 August 2019.
213 The first fact, the payment into the Madgwicks Lawyers' trust account, is an act of performance of the narrow agreement that the funds would be paid into the Madgwicks Lawyers' trust account for the purpose of showing the vendor that funds were available.
214 The third fact, the execution of the contracts is of no relevance in and of itself to the existence or otherwise of an agreement in the terms alleged.
215 The only fact of interest, which arguably may amplify the content of the agreement beyond the confines apparent from the writing relied upon, is the fact that on or around 2 August 2019, NSL, NSL Group and NSLMP, alternatively one or more of them, procured that Madgwicks Lawyers transfer the $2.97 million to the vendor. The NSL companies criticise this plea characterising it as conclusionary and self-serving with an absence of particulars as to how it was that NSL Group and/or NSLMP are said to have procured the transfer. The criticism is without substance; save to the extent that it relates to NSL Group. The documentary trail is clear enough. It is not in dispute that at least one of the NSL companies gave instructions to Madgwicks Lawyers who then effected the transfer to the vendor.
216 However, the fact that the transfer took place so as to enable the deposit to be paid on 2 August 2019 in and of itself is not enough to give rise to a conclusion that the parties entered into the NSL Loan Agreement on or about 21 June 2019.
217 There is no plea nor any particulars of any conduct on the part of LBA with respect to the making of that transfer from Madgwicks Lawyers' trust account. All that can be known is that on 2 August 2019, such a transfer was made by Madgwicks Lawyers on instructions provided by one or more of the NSL companies to the bank account of the vendor's solicitors, MinterEllison, for the evident purpose of facilitating payment of the deposit due under the contract of sale and the asset sale agreement.
218 Either the payment on that day occurred with LBA's knowledge and assent (which, for the reasons set out below in relation to the moneys had and received claim, is in my view the far more likely) or it did not.
219 Either way, upon the making of that payment on 2 August 2019, one or more of the NSL companies became subject to a form of legal liability to LBA and hence to the plaintiffs.
220 If the payment occurred with LBA's consent, then the payment may have been made pursuant to an agreement between LBA and one or more of the NSL companies made on or about 2 August 2019, or alternatively, it renders one or more of the NSL companies liable in an action for money had and received to the use of the party that received the payment.
221 Whether the payment was made pursuant to an agreement or whether it gives rise to an action for moneys had and received makes no practical difference.
222 It is convenient then to turn to the moneys had and received claims principally for the purposes of determining which of the NSL companies had the use of the funds from 2 August 2019 and accordingly which of the NSL companies would be liable in relation to a claim for moneys had and received.
223 The plaintiffs plead further or alternative claims (to that of the NSL Loan Agreement claim), of unjust enrichment and money had and received to the use of LBA against NSL, NSL Group and NSLMP, alternatively one or more of them. These pleas can only be alternative claims to the NSL Loan Agreement claim; so much was accepted by the plaintiffs.
224 The NSL companies criticise the manner in which these claims are pleaded. There is some merit in that criticism. The plea is consistent with a claim for money had and received by the defendant to the use of the plaintiff which is a different common money count to a claim for money paid by the plaintiff to the use of the defendant.[76]
225 An action for 'money had and received by the defendant to the use of the plaintiff' arises where money is paid by mistake, or on a consideration which happens to fail or through imposition, extortion or oppression or where advantage is taken of the plaintiff's situation.[77] In Restitution Law in Australia, the authors express the ambit of this count in the following manner:[78]
Count for money had and received. A number of distinct cases were recognised in quasi-contract for 'money had and received by the defendant to the use of the plaintiff'. In Moses v Macferlan, Lord Mansfield categorised these as including 'money got through imposition (express or implied)', or a claim based on 'mistake', a 'consideration which happens to fail', 'extortion', 'oppression', or 'undue advantage' of the plaintiff's position, 'contrary to the laws made for the protection' of a person such as the plaintiff.
226 Such a claim arises where the plaintiff's money is taken without authority.[79]
227 This is to be contrasted with an action for 'money paid by the plaintiff to the use of the defendant'. Such an action implies a promise by the defendant to repay the money to the plaintiff that had been provided at the defendant's request. Again, in Restitution Law in Australia, the authors describe such a claim:[80]
Count for money paid. The form of action for money paid by the plaintiff to the use of the defendant was superseded by the common count for money paid. The count averred a debt arising from payment of money by the plaintiff to and for the use of the defendant, pleaded the request that the money be so laid out, and (originally) averred the breach of a promise to pay the debt on the plaintiff's request for payment.
...
The count was available in relation to actual, implied, and some non-contractual requests. ... A request may be implied by general course of dealing, or by the nature of the particular transaction. Provided it is relied upon by the plaintiff, liability may ensue unless a gift was in the reasonable contemplation of the parties....
228 The NSL companies are correct in drawing this distinction. As earlier noted, NSL accepts that it would be liable as and from 2 August 2019 in respect of an action for moneys had and received to its use. This is on the basis that the use, as and from 2 August 2019, gives rise to a claim in the plaintiffs' favour for moneys paid, on the basis that such money was paid by the plaintiff to the use of the defendant and that in those circumstances, the law implies a promise of repayment by the party who has used the money and an action lies in assumpsit.[81] It denies however that it is liable for any action for moneys had and received to LBA's use and says that this is the pleaded claim. Whilst that is true, the plaintiffs' description of the moneys had and received claim, on occasions described the claim as one of moneys had and received to the defendant's use[82] and it is fair to say it could've been more tightly described. That said, the substance of the case advanced was clear; one of the NSL companies was liable in respect of a moneys had and received claim, from 2 August 2019.
229 The claim only arose on 2 August 2019. That is so whether the claim is one supporting an action for moneys had and received to the use of the plaintiffs (if the money was taken without the plaintiffs' authority) or whether it is an action for money paid, if the money was paid by the plaintiffs to the use of the defendants with the plaintiffs' consent.
230 Until that time, the money was held in Madgwicks Lawyers' trust account in accordance with the narrower agreement which I have found.[83] The narrower agreement being that it would remain in the trust account so as to show the vendor that funds were available but would not be disbursed from that trust account until such time as a formal loan agreement was entered into.
231 I accept the NSL companies' submission that beneficial title to the deposited funds rested with LBA until the use of the funds was authorised by LBA[84] which occurred on 2 August 2019.
232 Any claim then, however it arises, is a claim which arose only on and from 2 August 2019.
233 I also agree with the submissions of the NSL companies to the effect that the payment on 2 August 2019 from the Madgwicks Lawyers' trust account most likely occurred with the knowledge and assent of LBA.
234 Whilst the plaintiffs are correct in saying that there is no direct evidence which establishes such knowledge, the inference is overwhelming that it did. From at least 19 July 2019 onwards, Mario Charisiou had been aware that deposits were to fall due when the contract of sale and asset sale agreement was signed.
235 The money was originally held in the Madgwicks Lawyers' trust account and was not to be released until formal loan agreements had been entered into. By 2 August 2019 this had not occurred. Despite knowing that no formal loan agreement had been signed, Madgwicks Lawyers allowed the money to be transferred out to pay the deposit on the instruction of one of the directors of NSLMP. The strong likelihood is that LBA knew this; they knew the deposit had been paid; they knew the money was no longer in the Madgwicks' Trust account. LBA made no complaint which it surely would have done had the money been transferred out without its consent. Madgwicks Lawyers surely would not have paid it out either without LBA's consent given the basis on which it was holding the money. It is overwhelmingly likely that on or about 2 August 2019, LBA and the one or more of the NSL companies varied the narrow agreement made 21 June 2019 to allow the money to be paid out to pay the deposit and that the question of which of the NSL companies would be treated as having borrowed the moneys would be determined by the later execution of the formal agreement. This in fact is exactly what occurred with the formal loan agreement being signed on 19 August 2019 but backdated to 19 June 2019. The 'release' of the party who had use of the money on 2 August 2019 came about because of subsequent entry into of the Facility Agreement, not mandated by its terms but because this outcome was the consequence of an arrangement most likely entered into on 2 August 2019 when the money was used to pay the deposit due to the vendor.
236 For the purposes of resolving this part of the case, which proceeds on the basis that Trivett is not liable under the Facility Agreement, it cannot be disputed that the claim arose on 2 August 2019 and I accept that in all likelihood it involved the use of the money with LBA's knowledge. Hence, the claim is properly characterised as a count for money paid as the use was with LBA's knowledge. But it matters little for the purpose of this part of the claim as to whether LBA knew of its use or not[85] as the user would be liable either way as and from 2 August 2019. The only issue of importance which gives rise to any real controversy is which of NSL, NSL Group and NSLMP had the use of the $2.97 million transferred out of Madgwicks Lawyers' trust account on 2 August 2019.
237 Of the three possibilities, only NSL and NSLMP are serious candidates. There is not a shred of evidence that suggests that the moneys were received and used by NSL Group. Indeed, in the entirety of the documentary evidence, the only potential reference to NSL Group is the reference to it in a structure chart attached to the email from Mr Zartaloudis to Mr Galatas and Mr Aiello, copied to James Charisiou dated 31 May 2019. The attachment was said to be a 'current structure chart for Next Stage Living Group Pty Ltd' which showed NSL Group as being owned by Trivett as to 80 ordinary shares and Deca Design Pty Ltd as to 20 ordinary shares and NSL and NSLMP as wholly owned subsidiaries of NSL Group.[86] There is also an email from Mario Charisiou to Mr Cuzzupi, Joshua Balsim, Tony Balsim, Mr Galatas and copied to Mr Aiello sent 21 June 2019 in which, after asking Mr Cuzzupi to get Madgwicks Lawyers to contact Mr Galatas, stated that '[t]he funds to be transferred are lent to the group, hence a loan agreement needs to be in place to the purchasing entity with guarantees in place'. The reference to 'group' is not necessarily, and in fact in the circumstances is unlikely, to be a reference to NSL Group.
238 The conceivable candidates as to who received the funds are NSL (as the NSL companies would advocate) and NSLMP which the plaintiffs submit is the more likely. The fact that the funds paid into the Madgwicks Lawyers' trust account were then used to satisfy the obligation of NSLMP to pay the deposit under the contract of sale and the asset sale agreement is relied upon by the plaintiffs. This provides some support for the proposition that the $2.97 million was received by and used by NSLMP to pay the deposit due from it under the contract of sale and asset sale agreement.
239 However, it is conceivable that the $2.97 million held in the trust account (originally beneficially for LBA), was then, with LBA's acquiescence, released to NSL and then NSL lent the moneys to NSLMP so that NSLMP could use the moneys to pay the deposit due under the contract of sale and the asset sale agreement.
240 Indeed, in the Defence to the 6FASOC, NSL Group, NSLMP and Trivett plead[87] that the $2.97 million was from moneys to the use of NSL and constituted a payment by NSL to the vendor in payment of the deposit payable by NSLMP. They further plead that this did not create any rights and obligations as between LBA and NSLMP but only, if at all, between NSL and NSLMP.
241 The NSL companies rely upon the fact that in the email from Madgwicks Lawyers to Mr Galatas with the subject line 'Ardmillan Place Holding Deposit' sent 21 June 2019,[88] Madgwicks Lawyers wrote advising that they act on behalf of 'Next Stage Living'. They also relied on the fact that when Madgwicks Lawyers emailed Mr Galatas on 24 June 2019, having received the moneys on 21 June 2019, attaching Madgwicks Lawyers' trust receipt for LBA's records, the trust receipt[89] recorded that the relevant file name was 'SJH 038064' in the name of 'Next Stage Living Pty Ltd'. They draw attention to r 36 of the Legal Profession Uniform General Rules 2015 ('Uniform Rules') which relate to receipting of trust money. Rule 36 requires, among other things, the law practice to make out a receipt as soon as practicable after the trust money is received and that the receipt must, among other things, clearly identify the name of the client in respect of whom the money was received and the matter description and matter reference, which the NSL companies argue refer to NSL, not NSLMP. They therefore submit that the Uniform Rules support the inference that the funds received, which were receipted as being received for NSL, could only then have been used by NSL, not NSLMP, which according to the NSL companies used the moneys made available to it by NSL to pay the deposit. They otherwise rely on the fact that Mr Galatas did not object or otherwise say anything in response when he received the receipt.
242 The plaintiffs' money count claim succeeds against NSLMP, not NSL. It was NSLMP who received the money on 2 August 2019 to its use, not NSL.
243 First, the trust account receipt is more equivocal than the NSL companies submission suggests. Whilst it records that the relevant file was a file opened in the name of NSL, not NSLMP, it is common ground that as at 21 June 2019 NSLMP was also a client of Madgwicks Lawyers. Madgwicks Lawyers first commenced acting in matters concerning this transaction and opened a file on 10 October 2018 having previously issued a fee proposal to NSL on 3 August 2018 and a revised proposal to NSL on 25 September 2018. As at the date of these events, NSLMP had not been incorporated; it was not incorporated until 8 October 2018. The fact that the trust account receipt was referenced against a file opened in the name of NSL is explicable on the basis that NSL was the entity that entered into the formal retainer with Madgwicks Lawyers, it being the only entity at that stage which had been incorporated. Equally importantly, the trust account receipt, in accordance with r 36 of the Uniform Rules, is required to provide particulars sufficient to identify the reason for which the money is received. That reason identified in the trust account receipt was the deposit (in connection with) acquisition of 'Ardmillan Moonee Ponds'. The receipt therefore records that the funds had been received from LBA for the purposes of the 'Deposit/Acquisition of Ardmillan Moonee Ponds'. The acquirer and hence the party required to pay the deposit was NSLMP. The trust account receipt did not record that the purpose for which the $2.97 million was received was for NSL's general purposes or, more particularly, for a loan by NSL to another company in the NSL group of companies.
244 Secondly, the communications which passed between the relevant NSL companies' actors on 31 July and 1 August 2019 are all entirely consistent with the moneys held in the trust account being used to pay the deposit due from NSLMP, not used by NSL for the purposes of lending those moneys to NSLMP for that purpose.
(a) At 12:26pm on 31 July 2019, Mr Cuzzupi emailed Madgwicks Lawyers asking that Madgwicks Lawyers advise 'the process/actions required to ensure deposit is released tomorrow'.
(b) At 2:24pm on 31 July 2019, Mr Milentijevic emailed Mr Cuzzupi, Tony Balsim and Joshua Balsim, the email subject line 'Ardmillan release of deposit' with the email reading:[90]
Hi Anthony
Madgwicks have confirmed that they simply need an email instruction of a Director of NSL Moonee Ponds P/L to release the deposit being either myself or Josh.
(c) On 1 August 2019 at 1:40pm, Mr Cuzzupi emailed Joshua Balsim, copied to Tony Balsim and Mr Aiello attaching an Excel spreadsheet with a Moonee Ponds feasibility cashflow statement. That cash flow statement showed that funding of just under $3 million was to be provided by Trivett in respect of the acquisition of the Property and assets by 'Next Stage Living'. This is consistent with Trivett borrowing the money from LBA and then lending the money to the acquirer of the Property. It also shows various acquisition costs and thereafter anticipated project revenue in connection with 'Ardmillan Place by Next Stage Living'. Given that there is no suggestion that NSL was to acquire the Property, the most likely inference is that the reference to Next Stage Living was in fact a reference to NSLMP. This is supported by the fact that the cash flow also includes after the words 'Next Stage Living' on the next line, the words 'Moonee Ponds'.
(d) At 3:24pm on 1 August 2019, the vendor's representative emailed Mr Milentijevic and asked that he have Madgwicks Lawyers release the deposits into the following Bank of Melbourne account, which was an account in the name of Palalow Pty Ltd, with an accompanying request that Madgwicks Lawyers provide email confirmation to MinterEllison when the transfer is made with a payment receipt attached.
(e) At 3:50pm, Mr Milentijevic emailed Madgwicks Lawyers forwarding on an email from the vendor's representatives. Mr Milentijevic's email read:
We are at Minters offices about to sign the documents and will advise you when complete in order to release the funds.
(f) At 4:42pm, Mr Milentijevic again emailed Madgwicks Lawyers confirming that the transaction documents had been executed and requesting that the deposit be remitted as per the instructions below.
246 The email from Mr Milentijevic to Madgwicks Lawyers sent on 1 August 2019 at 4:42pm therefore was plainly an email from Mr Milentijevic as one of the directors of NSLMP authorising the release of the $2.97 million into the Bank of Melbourne account, in the name of Palalow Pty Ltd, which was referred to in the earlier email from the vendor's representative sent at 3:24pm.
247 The plaintiffs emphasise that the requirement on Madgwicks Lawyers' behalf that they needed an instruction from a director of NSLMP to release the deposit (by that meaning pay it out of their trust account to the Bank of Melbourne account in Palalow Pty Ltd's name) was a request which was explicable by s 138(1) of the Legal Profession Uniform Law.[91] This section provides that a law practice can only authorise the release of moneys held in a trust account upon receipt of a direction given by the person on whose behalf the trust money had been received. The plaintiffs therefore argue that this is a strong indicator that Madgwicks Lawyers considered that it was holding the moneys in trust on 2 August 2019 for NSLMP.
248 In closing submissions, the NSL companies submitted that the request was variously one which related to an instruction to pay the deposit due under the contract of sale and/or that the reference to release involved the release of the deposit to the vendor in accordance with s 27 of the Sale of Land Act 1962 (Vic) ('Sale of Land Act').
249 I do not accept that is so. There was no mention of the deposit being released to the vendor in accordance with s 27 of the Sale of Land Act or otherwise as opposed to being paid to the vendor as the deposit due under the contract of sale which required its payment on the day of sale in accordance with the provisions of the contract. Thereafter, special condition 7 of the contract of sale would govern the manner in which the deposit would be held, which relevantly included a joint direction from the vendor and the purchaser that the deposit would be invested by the vendor's lawyer in a controlled moneys account at a bank until such time as the deposit could be lawfully released in accordance with the Sale of Land Act.
250 Further, it would have been an easy matter for the NSL companies to have called evidence, documentary or oral, from the directors of any of the companies seeking to establish that the payment made on 2 August 2019 was a payment by NSL in discharge of an obligation of NSLMP and which created a relationship of debtor and creditor between the two and not, as the feasibility cash flows contemplated, financing provided by Trivett to NSLMP.[92] The fact no-one gave such evidence provides further support for the conclusion (which I would draw in any event from the documents identified) that the use was by NSLMP.
251 Not only did no director of NSL or NSLMP give such evidence, the NSL companies made a deliberate choice not to lead that evidence having first, in their outline of opening submissions filed 28 January 2025, foreshadowed tendering ledger entries of NSLMP and NSL which they submitted constituted prima facie evidence of an indebtedness on the part of NSLMP to NSL.
252 The NSL companies ultimately chose not to tender that evidence after being put on notice of an application by the plaintiffs for leave to adduce further additional evidence which was said to establish that an examination of metadata revealed that the ledger entries were created well after the relevant transactions. This reinforces the conclusion that it was NSLMP who used the money in the trust account to pay its deposit, not that NSL used the money to lend it to NSLMP so that the latter could pay the deposit.
253 In short, aside from the fact that the file was opened in the name of the only NSL company then in existence and that the receipt was referenced to that company, there is a complete absence of any evidence which speaks to a contemporaneous use of the moneys by NSL, by way of loan or some other form of transaction (such as would enable NSLMP to pay the deposit). As the plaintiffs' submit, and I accept, this was simply a product of the circumstances attending the opening of the file. I do not accept that this somehow means that Madgwicks Lawyers mishandled trust money. NSLMP was a client, as was NSL, and it acted on instructions from its directors (who were directors of both companies). As the plaintiffs' note, moneys held in trust for the same client were later used to pay NSLMP's costs of its litigation with Ardmillan. This reinforces the entirely proper and orthodox use of moneys in the trust account, on the file opened for NSL, for NSLMP.
254 Had I not therefore found in favour of the plaintiffs against Trivett in relation to the Facility Agreement claim, I would have found in favour of the plaintiffs against NSLMP with respect to an action for moneys had and received by NSLMP to its use arising as and from 2 August 2019. I would not have precluded the plaintiffs from obtaining judgment on that basis notwithstanding that the claim, as pleaded, was for moneys had and received by NSLMP to the use of LBA and not moneys had and received by NSLMP to the use of NSLMP. As noted above, the plaintiffs' framing of the case did not clearly distinguish between the two at trial and the NSL companies accepted that one of them had a liability on this basis as and from 2 August 2019. The real debate was as to who received the funds on 2 August 2019, NSL or NSLMP.
255 In the circumstances the plaintiffs will be entitled to judgment against Trivett for the sum of $2.97 million together with interest payable under the Facility Agreement at the rates prescribed in the Facility Agreement from 21 June 2019.
256 The claims against the NSL Group, NSLMP and NSL will be dismissed.
257 I will hear the parties as to the quantification of interest together with appropriate orders as to costs.
DEMETRIOS CHARISIOU (ALSO KNOWN AS JAMES CHARISIOU)
NEXT STAGE LIVING MOONEE PONDS PTY LTD (ACN 629 891 765)
[1] Counsel appeared on the first day of trial but was excused from further attendance.
[2] NSL notes that the claim against it is pleaded only as if it were a claim for moneys had and received to the use of LBA. This matter is addressed in the reasons below dealing with the moneys had and received claim.
[3] The proposed transaction incorporated both the existing land and improvements comprising the retirement village as well as the underlying business.
[5] Whilst the guarantors executed the Facility Agreement in the space designated for signing by the guarantors they never executed the contemplated separate Limited Guarantee and Indemnity.
[6] This is evident from the emails and attachments at [38]-[40] above.
[7] For the definition of Advance, Facility Limit, Initial Drawdown Date and Drawdown Date(s) see above [60]-[63].
[9] [2005] NSWSC 749. See also V Quattro Pty Ltd v Townsville Pharmacy No 4 Pty Ltd [2024] QCA 34 [24].
[10] Dong v Monkiro [2005] NSWSC 749 [61]-[63] (emphasis in original).
[11] For convenience, submissions advanced by counsel for NSL Group, NSLMP and Trivett are generally referred to as submissions of the NSL companies without distinguishing the position of NSL which played only a limited role at trial.
[12] Paragraph [25M28] of the Defence to the 6FASOC.
[13] Those paragraphs also raised claims for deceit and misleading and deceptive conduct however the claims were not pressed by the tenth to twelfth defendants as per paragraph [464] of their outline of opening submissions filed 28 January 2025.
[14] This plea is to be contrasted with a plea of NSL Group and NSL MP to an earlier iteration of the claims against them; see below [163].
[15] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116 [47] ('Mount Bruce Mining').
[17] Ibid 461-462 [22] (citations omitted); see also Mount Bruce Mining (n 15) 116-117 [46]-[52].
[18] Neither the plaintiffs or the NSL companies addressed issues arising from the conditions precedent and any consequential effect on the Initial Drawdown Date.
[19] Asya Balsim who lived with Joshua Balsim was in fact one of the directors of Trivett who signed the backdated agreement but it clear enough that Joshua Balsim was also representing Trivett's interests.
[20] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449.
[21] 'Loan Balance' means, at any time and from time to time, the aggregate principal amount remaining unpaid of all Advances, together with any accrued but unpaid interest, Costs and Fees and all other amounts accrued or outstanding under or in connection with this Agreement.
[22] 'Interest Period' in relation to an Advance means each successive period of one (1) day, the first such day being the initial Drawdown Date for that Advance and the last such day being the Repayment Date.
[28] [1951] HCA 79; (1951) 84 CLR 377, 405-406.
[29] [1931] UKHL 2; [1932] AC 161, 222.
[30] [1992] HCA 48; (1992) 175 CLR 353, 382-383.
[31] [1993] HCA 4; (1993) 176 CLR 344, 378.
[32] [2021] EWCA Civ 1149, 1263 [79]-[80] ('Dargamo').
[36] Paragraph [25O1] of the Defence to the 6FASOC. A relevantly identical plea appears in paragraph [25O1] of the Amended Defence of the Tenth to Thirteenth Defendants to the Fourth Further Amended Statement of Claim filed 9 August 2023.
[37] [1991] HCA 54; (1991) 174 CLR 64 ('Amann Aviation').
[38] [2024] HCA 17; (2024) 98 ALJR 719 ('Cessnock').
[43] Edelman, Steward, Gleeson and Beech-Jones JJ.
[47] Ibid 744 [118]-[119] (emphasis in original) (citations omitted).
[48] To use the words of Mason CJ and Dawson J in Amann Aviation (n 37) 87-89.
[51] The same plea was maintained in paragraph [25O1] of the Defence to the 6FASOC. This defence, filed 11 December 2024, was the defence current at trial (save that Trivett did not press the deceit and misleading and deceptive conduct pleas in paragraphs [25P1]-[25Q3]).
[54] See the Defence of the Tenth and Eleventh Defendants to the Third Further Amended Statement of Claim filed 21 November 2022.
[55] See JB Asset Management v LBA Capital Pty Ltd [2023] VSC 183.
[56] This was affected by the Fourth Further Amended Statement of Claim filed 26 June 2023 which is in largely similar terms to those now prosecuted in this proceeding save that the claim against NSL was added in later by a further amendment resulting in the 6FASOC.
[58] The plea set out above at [163].
[59] That is, in the same terms as the Defence to the 6FASOC.
[60] FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] VicRp 76; [1993] 2 VR 343, 349 ('FAI Traders'); Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509, 518 [27]; ABN Amro Clearing Sydney Pty Ltd v Primebroker Securities Ltd [2012] VSCA 287; (2012) 39 VR 208, 224 [66].
[61] James Miller & Partners Ltd v Whitworth Street Estates Ltd [1970] AC 583, 603.
[62] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 142 CLR 337, 348, 352.
[63] Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570, 607-608 [115(3)].
[64] FAI Traders (n 60) 351 (Brooking J with whom Nathan and Eames JJ agreed); _074 971 109 Pty Ltd v National Mutual Life Association of Australasia Limite_d (2009) 21 VR 351, 371 [84].
[65] Zoobury Pty Ltd v Cariste Pty Ltd [2022] NSWSC 18, [114]-[115].
[66] [2009] NSWCA 407; (2009) 76 NSWLR 603, 682 [324].
[67] Duvuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317, 340-341 [68]-[70]; Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150, [79]-[82] ('Johnston').
[68] [1993] VicRp 76; [1993] 2 VR 343, 351 (citations omitted).
[69] County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, [162] citing Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149, [106], in turn citing Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 550.
[70] Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 551; Johnston (n 67) [2014] NSWCA 150.
[76] See generally Ian Jackman, The Varieties of Restitution (Federation Press, 2nd ed, 2017) 26-37 ('Jackman'); Keith Mason et all, Restitution Law in Australia (LexisNexis Butterworths, 4th ed, 2021) ('Mason').
[78] Mason (n 76) 19 [117] (citations omitted).
[79] Shaw Building Group Pty Ltd v Narayan (No 2) [2015] FCA 585.
[80] Mason (n 76) 17-18 [116] (citations omitted).
[82] See, inter alia, plaintiffs' closing submissions filed 12 February 2025 at [330] which was noted in the tenth to twelfth defendants' closing submissions in reply filed 26 February 2025 at [65].
[84] See Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164, 168-169 [12]-[13]; Hall & Ors v Ficema Pty Ltd [2022] NSWSC 29; (2022) 409 ALR 558, 568-570 [51]-[62].
[85] Subject to the claim being allowed notwithstanding that it is pleaded as a claim for moneys had and received to LBA's use.
[86] In fact this appears to be incorrect when one looks at the company searches. Although the company searches tendered for NSL confirms that NSL was a wholly owned subsidiary of NSL Group and that NSL Group is now the ultimate holding company of NSLMP, the search suggests that NSLMP's shares were never in fact wholly owned by NSL Group and that NSL Group only became a shareholder on 17 December 2019.
[91] Legal Profession Uniform Application Act 2014 (Vic) sch 1.
JB Asset Management & Anor
LBA Capital Pty Ltd & Ors
(1951) 84 CLR 377
(1992) 175 CLR 353
(2024) 98 ALJR 719
(2023) 110 NSWLR 464
(2009) 76 NSWLR 603
(2015) 256 CLR 104
(2004) 218 CLR 451
(1992) 110 ALR 449
(1993) 176 CLR 344
(1991) 174 CLR 64
(1854) 2 CLR 517
(2012) 38 VR 509
(2012) 39 VR 208
(1982) 142 CLR 337
(2008) 238 CLR 570
(2009) 21 VR 351
(2003) 215 CLR 317
(1988) 18 NSWLR 540
(2022) 409 ALR 558