Srinivas Pty Ltd v Vansan Construction Pty Ltd [2025] VSC 381

1. The plaintiffs submit that none of the matters relied upon by the defendants in this regard, as set out in the preceding paragraph, have any impact on the validity of the plaintiffs' termination of the Loan Agreements.
2. The plaintiffs contend that it is plain that the defendants could not have discharged the mortgages that subsisted over the three Lots to enable the transfer of those Lots to the plaintiffs. As at 15 February 2022, there was a mortgage lodged over the title to the Lots in favour of Payton Capital Ltd, and there were caveats lodged over the title to the Lots by IC Finance Holdings Pty Ltd and Margi IBC Holdings Pty Ltd.[52] Furthermore, as at 29 June 2022, there remained a mortgage lodged over the title to the Lots in favour of Payton Capital Ltd,[53] and a further mortgage had been lodged over the title in favour of Crucis Pty Ltd which secured of a loan of $3,818,750 just one month before.[54] The defendants have adduced no evidence to suggest that any lender would have consented to the transfer of the Lots for no further consideration, as required by the Loan Agreements. Turning to the summary of documents produced by the defendants' conveyancer under subpoena, the plaintiffs contend that the entirety of the proceeds of sale of each of the three Lots was paid to the mortgagees (after selling costs).[55] They go on to say that the Court can draw the clear inference that the mortgagees would not have consented to the transfer of the Lots for no consideration. They point to Shan's admission in July 2023 where he stated he was "trying to give two clear titles at Springvale road",[56] but was obviously unable to do so.
3. In any event, whether either party took steps to effect a transfer of the Lots is ultimately immaterial to the plaintiffs' right to terminate the Loan Agreements under clause 7.2(d). The plaintiffs say that the only precondition to the exercise of the plaintiffs' rights under clause 7.2(d) is that the plaintiffs were satisfied, in their absolute discretion, that the relevant Lot was unencumbered. Here, the plaintiffs were plainly not so satisfied, which is evidenced by the fact that the Lots were actually encumbered, as well as the fact of the plaintiffs' exercise of rights under clause 7.2(d) in January 2023.[57] Therefore, this entitled them to an express right to terminate under clause 7.2(d), the right to demand the immediate repayment of the amount owing in cash, and the entry of a judgment against the defendants. They contend that the plaintiffs exercised that right on 9 January 2023, and the matters raised by the defendants (even though incorrect) have no bearing on that fact.

1. The defendants' submit that if the Payments were made in accordance with the terms of the Loan Agreements (which is denied), they were denied the opportunity of discharging the loans by transferring the Properties as provided for in clause 7.2(a). They argue that this is because the Signed Sale Contracts Condition was not satisfied and the plaintiffs did not do the things referred to at paragraph 236 above which may have otherwise enabled transfer of the properties to occur.
2. The defendants argue that the words 'settlement of the Springvale Property' are critical to the operation to clause 7.2(c). They submit that clause 7.2(c) does not require satisfaction of the relevant conditions by the Repayment Date or any other date fixed under the Loan Agreements. Further, they say clause 7.2(c) assumes that there would be executed contracts of sale which would impose obligations on the parties to settle the transfer of the Lots by a particular date. Moreover, it is implicit from clause 7.2(c) that the date by when settlement was to occur under any executed Contract of Sale was not dependent upon the Loan Drawdown Date and may have been a date which was either before or after the Loan Drawdown Date. There were no signed Contracts of Sale.
3. As such, the defendants say that that there was no settlement date by when the parties were required to complete contracts of sale for each Lot. They contend that therefore there was no obligation upon the defendants to satisfy the conditions in clause 7.2(c) by any particular time. Their case does not therefore require them to prove that they were in a position to cause the removal of the encumbrances by any particular time, because the time for doing so had not been fixed.
4. Furthermore, the defendants submit that there are good reasons why the encumbrances did not need to be removed before Contracts of Sale were executed. They say this is because where there is a property that is subject to a contract of sale, it is typical for encumbrances on the property to be removed at the time of settlement of the transaction. Secondly, it was unreasonable for the defendants to be expected to take any steps to remove the encumbrances without a binding Contract of Sale which could be used to effect settlement of the sale.
5. The defendants argue that the plaintiffs appear to have misconstrued the effect of clause 7.2(d) that they say purportedly allowed them to terminate the "Loan Agreements" rather than just terminate the "Contracts of Sale" as had been intended. Further, the defendants say that the plaintiffs' submissions do not clarify that clause 7.2(d) only granted a right to terminate the "Contracts of Sale" nor grapple with the difficulties that this right has on their reliance upon clause 7.2(d). Given there were no Contracts of Sale which were capable of termination, the plaintiffs could not exercise any rights under clause 7.2(d) by way of their notice of 9 January 2023. Further, the defendants draw attention to clauses 7.1 and 7.2. Here, they say that it is clear that a transfer of properties was the primary means of discharging the loans rather than any claim by the plaintiffs for repayment of the money, plus interest. Hence, the defendants cannot at that time - or at any time - be alleged to have been in breach of the Agreements for failing to repay money under the Agreements when there were no executed Contracts of Sale by which the defendants could have discharged the loans pursuant to clause 7.2(a), without incurring any interest.

1. The plaintiffs begin by responding to two submissions made by the defendants. First, that there was no obligation on the defendants to satisfy the conditions in clause 7.2(c) as there were no executed Contracts of Sale and therefore no agreed settlement dates. Second, there were "good reasons" as to why the encumbrances did not need to be removed before the execution of a Contract of Sale.
2. The plaintiffs submit that despite the defendants not explaining what the consequences of these matters are, they could have no impact on the plaintiffs' rights under clause 7.2(d).
3. The plaintiffs submit that clause 7.2(d) is unambiguous to the effect that if the plaintiffs are not satisfied that the relevant Lot was unencumbered (inferentially, at the expiry of the loan period), the plaintiffs could demand the immediate cash payment of the amount owing and enter judgment against the defendants. They argue that provision could not be clearer, and that clause 7.2(d) is not, either on its terms or by inference, dependent on the execution by the parties of a Contract of Sale.
4. Furthermore, the plaintiffs refer to the defendants' submission that because the parties did not execute Contracts of Sale, "the plaintiffs could not by their notice of 9 January 2023 have executed any rights pursuant to clause 7.2(d)". The plaintiffs contend that the defendants' submission is a bare assertion that is contrary to the clear words of clause 7.2(d), and that they do not provide justification as to why the plaintiffs could not exercise their rights under clause 7.2(d). They say that the defendants' assertion is not consistent with the plain words or function that clause 7.2(d) was intended to serve.
5. The plaintiffs submit that the situation that the defendants seek to put forward would be unfair in the extreme for the plaintiffs. They say that the defendants seek to confect a situation in which they do not have to repay money to the plaintiffs, do not have to take any steps to discharge the encumbrances on the three Lots, and the plaintiffs are not permitted to end the Loan Agreements and demand repayment of the principal. The plaintiffs argue that such a situation could not have been objectively envisaged by the parties and ignores the submission to judgment in clause 7.2(d).
6. In addition, the plaintiffs also submit that at no time did the defendants ever take any steps to attempt to procure a transfer of the Lots. There is no evidence that they were capable of procuring a transfer of the Lots, and to now assert that the plaintiffs have forfeited their rights under clause 7.2(d) is a transparent attempt to avoid the plaintiffs relying on rights clearly agreed to by the parties.

1. In my view, the defendants' position in respect of this question is contrary to the clear words of the Loan Agreement.
2. Pursuant to clause 7.1 of the Loan Agreement, the Borrower must repay and finally discharge the loan amount on the Repayment Date, together with interest under clause 6.1(a). Thus, the first and second defendants must repay the loan and interest on 15 February 2022 in the case of the First and Second Loan Agreements and on 29 June 2022 in the case of the Third Loan Agreement. Clause 7.1 is expressed as being subject to clause 7.2, which provides for transfer of Lots 14, 15 or 16 (depending on which Loan Agreement) in lieu of payment. Clearly, the Repayment Date is the date by which payment or transfer of the relevant Lot must occur.
3. The provisions of clauses 7.2(c) and (d) are crucial here, and have been set out above.
4. Cash payment of the principal and interest can be demanded by the Lender if it is not satisfied of the matters in clause 7.2(c). It is patently clear that if the Lender is not so satisfied then it has the right to demand repayment of the loan and payment of interest by giving immediate notice. I accept the plaintiffs' submissions in this regard, particularly those at paragraph 247 above.
5. The other matters relied upon by the defendants, being the plaintiffs not having called for the transfer of the Lots, not having signed Contracts of Sale, and there being no agreed settlement date, are irrelevant. They do not impact upon the plaintiffs' rights under clause 7.2(d). It cannot be said that clause 7.2 could not be complied with because of the plaintiffs' actions.
6. It follows from this analysis that I do not accept the defendants' submissions at paragraphs 241, 242 and 244 above. It cannot be the case that repayment of the loans in the manner contemplated by clause 7.2(d) was as open-ended and unrestricted by time as the defendants suggest.
7. The defendants' contention that there were good reasons why encumbrances would not be removed without executed sale contracts is also irrelevant. All that matters in order to trigger the right to demand immediate cash payment in clause 7.2(d) is that the Lender is not satisfied in accordance with clause 7.2(c). Here, that means whether the plaintiffs are satisfied that Lots 14, 15 and 16 are unencumbered at the Repayment Date or when they subsequently seek to exercise their rights.
8. In this case, the evidence clearly and unequivocally establishes that the relevant Lots were encumbered as at the relevant dates, being 15 February 2022 for Lots 14 and 15, and 29 June 2022 for Lot 16, and that they remained encumbered until 9 January 2023 and beyond. During oral submissions, the plaintiffs' counsel carefully took the Court through the documents in the court book and the summary document (which was tendered without objection) which established this. The relevant documents were referred to in the plaintiffs' written closing submissions and have been cited above.
9. The evidence also leads to the conclusion that the first and second defendants were not in a position, as at the Repayment Dates or thereafter, and in particular as at 9 January 2023, to deliver unencumbered title as the relevant Lots remained the subject of a mortgage and a caveat, later two mortgages, particularly if no money would be forthcoming from the transferee to discharge those obligations. There is no evidence that the first and second defendants were in a position to discharge those obligations from their own resources or from resources other than payment by the plaintiffs. Since no further monies were required from the plaintiffs for the transfer (pursuant to clause 7.2(b)), it was not as if settlement of the sale was going to result in funds being available from the plaintiffs for the discharge of those obligations so as to facilitate the discharge of the mortgages. Subsequent events bear this out: when the properties were later sold to third parties, the net proceeds of sale after selling costs were paid to the mortgagees; and in July 2023 Shan told Sri that he was trying to give two clear titles, which obviously did not occur.
10. Accordingly, the defendants were in default as at 9 January 2023 and the Notice was valid. The defendants' defence in this regard fails.

1. The plaintiffs claim that if they are not entitled to repayment of the loans and interest pursuant to the Loan Agreements, then they have a claim in restitution against each of the defendants.
2. The defendants concede that the plaintiffs have a claim against the second defendant in restitution, but not against the first or third defendants. The defendants say that any obligation to pay interest is not pursuant to the terms of the Loan Agreements.
3. In light of my findings as to the enforceability of the Loan Agreements and the defendants' liability thereto, it is not necessary for me to determine the plaintiffs' restitution claim.
4. However, out of deference to the arguments made by the parties, their positions and my analysis are set out below.

1. The plaintiffs submit that if the Court concludes for some reason that the plaintiffs are not entitled to enforce the rights in the Loan Agreements, then the defendants must still make restitution to the plaintiffs by returning the funds. They highlight that the defendants do not plead that they had any right to retain the funds if the Loan Agreements did not operate.
2. The plaintiffs submit that the circumstances alleged by the defendants are equivalent to a situation where a lender advances funds to a borrower under an illegal, and therefore unenforceable, loan contract. In such a case, the borrower is obliged by restitutionary principles to repay the funds.[58]
3. If the plaintiffs are unable to enforce the Loan Agreements, they accept that they would not be entitled to interest at the contractual rate of 25% (the ordinary rate) and 35% (the default rate). However, they claim an entitlement to interest at the penalty interest rate of 10% from the date of the Payments.[59]

1. The defendants say that the plaintiffs have not properly pleaded any claim for restitution as an alternative to their claims under the Loan Agreement, including by properly pleading the material facts alleged to give rise to the cause of action. However, the defendants accept that for the purposes of this proceeding and in the circumstances of this case, the plaintiff do have a claim for restitution as against the second defendant for repayment of money that was transferred to it.
2. However, the defendants contend that the plaintiffs do not have a claim for restitution as against the first defendant or third defendant for two reasons. First, there is no evidence that they received the Payments. Second, the Guarantee relied upon by the plaintiffs should not be construed as applying to any claims for restitution. In particular, they argue that the definition of 'Guaranteed Liabilities' should be interpreted contra proferentem in favour of the third defendant so as to not encompass a claim for restitution.
3. The defendants go on to say that the only interest payable on the restitution claim would be interest which, following judgment of the primary claim, the Court is satisfied ought to be paid pursuant to sections 58 or 60 of the Supreme Court Act 1986 (Vic) (Supreme Court Act).

1. In relation to the defendants' submission that the Guarantee does not apply to restitution claims and should be interpreted contra proferentem, the plaintiffs say that the defendants make no effort to engage with the terms of the Guarantee in making such a submission, and the submission is contrary to the clear words of that deed.
2. The plaintiffs refer to the definitions of 'Liabilities' and 'Guaranteed Liabilities' in the Guarantee (see paragraphs 37 and 38 above).
3. The plaintiffs submit that it is plain from these definitions that Shan, as guarantor, is liable to the plaintiffs for any amounts that the first or second defendants as Debtors are liable to pay to the plaintiffs. They say that that liability could not be drawn in broader terms and plainly extends to liability pursuant to an order for restitution.
4. The plaintiffs highlight that in addition to guaranteeing the Debtor's obligations, Shan is also liable to the plaintiffs as a primary obligation under the indemnity in clause 4.1 of the Guarantee (see paragraph 39 above). They argue that this would operate in the event that the plaintiffs were precluded from enforcing their rights against the defendants under the Loan Agreements. They contend that clause 6.2(c) otherwise applies to prevent any discharge of liability if an obligation under the Loan Agreements is unenforceable.

1. The plaintiffs refer to the defendants' assertion that only the second defendant received the funds and that only the second defendant would therefore be obliged to make restitution to the plaintiffs. However, the plaintiffs submit that this assertion is contrary to the agreed purpose of the loans, which was to provide working capital for the first defendant's business, and the parties' joint chronology where both parties agreed that the plaintiffs paid funds to the "first and second defendants." Therefore, the plaintiffs assert that given the first defendant received the benefit of the loan funds, there is no justification for the first defendant avoiding an obligation to make restitution jointly with the second defendant.

I.4 The defendants' submissions in response to the plaintiffs' reply

1. Referring to the plaintiffs' submission in the preceding paragraph, the defendants assert that references in the joint chronology to the plaintiffs paying money to "the first and second defendants pursuant to the [agreements]" cannot be treated as admissions to the effect that the first defendant received that money for the purpose of a restitution claim. The defendants contend that when that chronology was prepared, the plaintiffs' claim for restitution was not properly pleaded (as remains the case despite the defendants' concession regarding the existence of such a claim) and was not identified in the list of agreed of issues. They say that this remains the case despite the defendants' concession regarding the existence of this claim. Further, they argue that the defendants' position is and has always been that the second defendant received the money, not the first defendant.

1. Were it necessary to decide, I would hold that all of the defendants are liable to the plaintiffs in restitution for the principal amount of the loans, being $1,500,000, plus interest according to statute.
2. The defendants do not dispute that the second defendant is liable in restitution in this way. In the circumstances of this case, as the second defendant received the Payments, there is no basis for it to dispute liability to repay those monies, plus statutory interest.
3. In my view, the first defendant is liable to the plaintiffs in restitution. The situation here is not as simple as identifying the bank account to which the Payments were made. Importantly in this case, the Payments were made for the benefit of both the first and second defendants. The first defendant cannot retain the benefit in the circumstances of this case.
4. Further, I do not accept the defendants' submission that regard cannot be paid to the joint chronology when considering whether the first defendant is liable in restitution. The joint chronology was filed pursuant to orders made by Attiwill J on 8 November 2024, which required the plaintiffs to serve on the defendants a draft neutrally expressed chronology of the relevant facts and events, the defendants to serve on the parties a further draft, following which the parties were to confer as to the content of the chronology after which the plaintiff was to file and serve the finalised neutrally expressed chronology. The orders stated that the finalised chronology must indicate if any fact is not agreed and by which party. The joint chronology is dated 19 December 2024 and was filed on 22 January 2025. Relevantly, the following facts were agreed in the joint chronology:

The plaintiffs pay $300,000 to the first and second defendants pursuant to the agreement

The plaintiffs pay $200,000 to the first and second defendants pursuant to the agreement

The plaintiffs transfer $500,000 to the first and second defendants pursuant to the 21 May 2021 agreement

The plaintiffs transfer $500,000 to the first and second defendants pursuant to the 30 June 2021 agreement

1. Having agreed to these facts, I consider the defendants cannot now simply cast that aside. Nonetheless, my conclusion in paragraph 279 above means that reliance on the joint chronology is not determinative. There is sufficient evidence that the first defendant is liable to the plaintiffs in restitution.
2. Insofar as the third defendant is concerned, I agree with the plaintiffs' submission that the Guarantee applies in respect of the plaintiffs' restitution claim. In particular, I agree with the plaintiffs' submissions as set out at paragraphs 273 and 274 above. The definitions of "Liability" and "Guaranteed Liabilities" are broad enough to include liability for an amount ordered against the first and/or second defendants in restitution. The defendants' submissions do not engage with the provisions of the deed itself, and simply make the broad assertion that the Guarantee should not be construed as applying to any claims for restitution. Insofar as their reliance on the principle of contra proferentem is concerned, the defendants do not explain how that doctrine even arises in this case. It comes into play only w[60]re there is ambiguity,60 and here there is no relevant ambiguity.
3. Insofar as the question of statutory interest arises in respect of the plaintiffs' restitution claim, section 58(1) of the Supreme Court Act provides that:

If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

1. Section 60(1) of the Supreme Court Act provides that:

The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

1. In my view, s 58 of the Supreme Court Act applies if the plaintiffs' restitution claim succeeds. This is because a "sum certain" is recovered, being the principal of $1,500,000. Interest would accrue on that sum, at the rate fixed under the Penalty Interest Rates Act 1983 (Vic), from 9 January 2023, as that was the date at which demand for payment was made. Earlier dates under the Loan Agreements for the accrual of interest at 25% to 15 February 2022 for the First and Second Loan Agreements and 29 June 2022, then at the default rate of 35% thereafter, do not apply as the restitution claim only arises if the Loan Agreements do not apply to the Payments. No good cause to the contrary has been shown by the defendants.
2. It follows that I do not consider it appropriate to apply s 60 of the Supreme Court Act.

1. Apart from the plaintiffs' claim in restitution, the defendants do not appear to dispute that if the first and second defendants are liable under the terms of the Loan Agreements, then the third defendant is liable to the plaintiffs pursuant to the Guarantee.
2. Accordingly, as I have found that the first and second defendants are so liable, the third defendant is also liable pursuant to the Guarantee.

1. For the reasons set out above, there will be judgment for the plaintiffs. All of the defendants are jointly and severally liable to the plaintiffs for repayment of the principal amounts of the loans, being $1,500,000, plus interest.
2. Given that I have found that the Payments were made pursuant to the Loan Agreements, interest must be calculated in accordance with the terms of the Loan Agreements. The defendants did not appear to dispute the interest rate if the terms of the Loan Agreements governed the Payments, rather, they contended that interest pursuant to statute would apply if restitutionary principles applied.
3. Under the Loan Agreements, interest accrues on the principal at 25% per annum for the term of the loan and then at 35% per annum upon default. Given that I have not accepted the defendants' contention that they were not in default of the Loan Agreements, the default interest rate applies from the time at which they were in default.
4. The parties are to confer regarding the form of orders to give effect to this judgment. By 4pm on 2 July 2025, the parties are to:

(a) provide my Chambers with an agreed form of order, if agreement can be reached; or

(b) provide my Chambers with each party's preferred form of order, if agreement cannot be reached. In this event, the proceeding will be listed for 10am on 4 July 2025 for the making of final orders.

[1] Srinivas was incorporated on 26 April 2015. The sole shareholder is Srini's wife.

[2] For clarity and intending no disrespect, I will refer to the key players by their first names.

[3] Nsrikanth was incorporated on 27 April 2015.

[4] Vansan was incorporated on 2 June 2003.

[5] Dhruva was incorporated on 17 October 2019.

[6] [2015] HCA 37; (2015) 256 CLR 104, 116-7 [46]-[51] (Mount Bruce Mining).

[7] (1990) 170 CLR 394 (Commonwealth v Verwayen).

[8] [1971] AC 850, 883.

[11] [2008] NSWSC 1163 (Corbett Court).

[12] Corbett Court, [110] (citations omitted).

[13] [2017] QSC 85 (Civil Mining).

[15] Rick Bigwood and Nick Seddon, Cheshire & Fifoot Law of Contract (11th ed, 2017),[20.13] (citations omitted). Note that the authors here rely on Sandra Investments Pty Ltd v Booth [1983] HCA 46; (1983) 153 CLR 153 (Sandra Investments).

[18] (1991) 115 ALR 207, 220 (Canberra Advance Bank Ltd v Benny). The plaintiffs note that a similar outcome was reached in Wunda Projects Australia Pty Ltd v Kyren Pty Ltd [2010] SADC 96 at [149]: "It is common ground that the parties orally agreed to vary General Condition 42.1 relating to the manner in which Progress Claims would be submitted and paid. Clause 48 of the contract relating to waiver of contractual terms has been cited in this context, but I am satisfied that the parties, and in particular Kyren, agreed to waive the need for the written consent of the principal to that variation".

[19] [2003] FCA 50; (2003) 128 FCR 1, [217] (GEC Marconi).

[20] Rick Bigwood and Nick Seddon, Cheshire & Fifoot Law of Contract (11th ed, 2017), [20.3] citing Jane Swanton, '"Subject to Finance" Clauses in Contracts for the Sale of Land' Parts I and II (1984) 58 Australian Law Journal 633,690-4.

[21] See generally Sandra Investments.

[22] The plaintiffs refer to Prospa Advance Pty Ltd v Barnard [2022] NSWDC 65 (Prospa), where a condition precedent for the provision of accounts by the borrower was not satisfied prior to the lender advancing funds. Abadee DCJ held at [37] that the condition precedent was for the lender's benefit and was condition precedent only to the fact of performance of the contract, not of formation of it. The failure of the condition precedent meant that the contract was voidable at the lender's election but that the lender's decision to proceed with the loan agreement comprised an affirmation of the agreement.

[24] [1996] 1 NZLR 548, 550 (National Westminster Finance).

[25] (1982) 149 CLR 537, 551 (Perri).

[26] [2017] VSCA 383 (LCY v Ma).

[28] The defendants highlighted that their Honours noted that this requirement does not mean that inferential reasoning is unavailable in order to prove the assumption, citing the decision of Buss JA in Alpha Wealth (2008) 66 ACSR 594, 633 [181] in support of that proposition, but noting that such inferential reasoning did not assist the party relying upon the estoppel in that case.

[29] [1937] HCA 58; (1937) 59 CLR 641, 674 (Grundt).

[32] Perri, 551, see paragraph 109 above.

[33] National Mutual Trustees Ltd v Targridge Pty Ltd (Supreme Court of Victoria, Nathan J, 2 October 1995).

[34] Kodak (A/asia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association [1942] NSWStRp 19; (1942) 42 SR (NSW) 231,234 (Jordan CJ) (Kodak (A/asia Pty Ltd v RTMIIA).

[35] Sandra Investments, 157. His Honour outlined that "The approval referred to in cl. 24 was expressed in the form of a condition precedent, but it was a condition precedent not to the formation of the contract but to the obligation to complete it".

[41] Rick Bigwood and Nick Seddon, Cheshire & Fifoot Law of Contract (11th ed, 2017), [20.13] (citations omitted), relying on Sandra Investments.

[42] Civil Mining, [799]. See also Canberra Advance Bank Ltd v Benny, [220].

[43] See eg Court Book90 (Tab 17) (CB): "Please send loan agreement for execution at your earliest". The Loan Agreements themselves note in the Introduction that "The Lender has agreed at the request of the Borrower to provide financial accommodation...".

[44] [2000] HCA 20; (2000) 170 ALR 579, 584-5 [24].

[45] [2022] QDC 224.

[48] See the text messages at CB530 (where Shan sought a further $100,000 to be repaid in two weeks, to be advanced on an urgent basis before 5:00pm).

[50] Grundt, 675-6 (as extracted above and cited in LCY v Ma).

[52] Title searches for the Lots are set out at CB662 (Tab 66); CB666 (Tab 67); CB670 (Tab 68). The Payton Capital Ltd mortgage instrument is set out at CB640 (Tab 60).

[53] But with a new mortgage instrument: see CB637 (Tab 58).

[54] The Crucis Capital Ltd mortgage instrument is set out at CB635 (Tab 57). The defendants have not adduced any evidence of their capacity to discharge a mortgage of that sum in order to transfer the Lots to the plaintiffs, particularly having regards to their existing inability to repay the plaintiffs the small amount owed to them.

[55] Summary at CB869. Lot 14 is identified as 4 Jaffna Place and the settlement summary is set out at page 32-34 of the summary bundle (CB905). Lot 15 is identified at 6 Jaffna Place and the settlement summary is set out at page 40-42 of the summary bundle (CB913). Lot 16 is identified as 8 Jaffna Place and the settlement summary is set out at page 77-79 of the Bundle (CB950). In each of those summaries, the funds are paid to the mortgagee via Davis Lawyers, which can be inferred to be the lawyer for Crucis Ltd (noting that in earlier settlement summaries, when Payton Capital Ltd was the sole mortgagee, the mortgagee named in the summary was Mills Oakley (e.g. CB886).

[57] The defendants have never sought to argue that the plaintiffs were not, in fact, so satisfied when they sent the letter on 9 January 2023.

[58] Hurst v Vestcorp Ltd (1988) 12 NSWLR 394, 445-6 (McHugh JA) (citations omitted).

[59] See Australian Breeders Co-operative Society Ltd v Jones [1997] FCA 1405; (1997) 150 ALR 488, 542 (Wilcox and Lindgren JJ), where loan moneys under an unenforceable contract payable pursuant to restitutionary principles were ordered to be paid with simple interest under the NSW Supreme Court Rules. At a minimum, the plaintiffs say they would be entitled to interest from 9 January 2023 pursuant to section 58 of the Supreme Court Act.

[60] North v Marina [2003] NSWSC 64, [75]-[78].