(b) whether arguable grounds
29The Bank noted that the claim for estoppel had failed, on the evidence, at each essential point, namely:
(a) the Bank did not make any representations of the kind contended for by the defendants: see [88], [90] and [98];
(b) none of the representations that the defendants alleged involved clear or unambiguous statements: at [99];
(c) the defendants failed to establish any relevant form of reliance on any relevant representation: at [100], and
(d) there was no evidence that the defendants had suffered any detriment from the Bank allegedly resiling in 2009 from the alleged representations: at [101].
30The case before the trial judge turned on the evidence given by Ms Rosa Caporale for the applicant, and Mr Vale, for the Bank. To the extent that the judge rejected Ms Caporale's evidence and accepted that the conversations were probably in the terms indicated by Mr Vale for the Bank, no arguable error has been demonstrated. Ms Caporale submitted that the trial judge had approached the evidence with a mind closed to the possibility that Ms Caporale's account might be true, whatever the unlikelihood that the Bank would have approved of its officer making the representations he did. However, the reasons for judgment reveal no such "mindset". Whilst the demeanour of the witness and the manner in which testimony is presented are not disregarded, it is commonplace, and usually desirable, that a trial judge assess conflicting testimony against the likelihood of one proposition rather than another being more probable, in accordance with common experience. The assessment made was in accordance with the objective probabilities, based on the surrounding circumstances. No basis has been shown for this Court on an appeal to interfere with the findings of fact.
31The applicant's submissions, set out by Ms Caporale in the draft notice of appeal, complained that proffered evidence was improperly rejected by the primary judge. The evidence was not identified and no transcript reference was given to the judge refusing to allow further evidence to be adduced. In the course of oral submissions, Ms Caporale suggested that the rejected evidence might have included a list of purchasers for a development undertaken at Dapto, together with evidence of other events occurring after the proceedings commenced. She submitted that such evidence would have been relevant to the question of "detriment" resulting from the Bank resiling from its representations.
32In response, counsel for the Bank noted that five volumes of exhibits to Ms Caporale's affidavit of 1 December 2011 had been admitted and may well have contained the material referred to. The Bank further noted that a more plausible basis for the ground of appeal may have been a judgment delivered on 17 August 2012, a copy of which had been provided by the Bank with its materials, in which the trial judge had rejected an application by Ms Caporale for further time to produce evidence in support of the proposition that the project for which the funds had been obtained had reasonable prospects of success. That evidence was proposed in response to a submission by the Bank that the estoppel claim should be rejected because there were no reasonable prospects of the project being successful: judgment at [1]. That ground had not been pleaded and was ultimately withdrawn by counsel: judgment at [3]. If that were the basis for the impugned refusal of an opportunity to adduce further evidence, it is unimpeachable. In the absence of any other suggested basis, the ground is without substance.
33Two other specific grounds require to be addressed. The first, ground 10 (using the paragraph numbers in the notice, where the grounds commence at 8), alleged that the trial judge set the threshold for proof for promissory estoppel too high. In support of that ground reference was made to an unsourced statement by Tobias JA. However, with the assistance of the Bank's solicitor, the quotation was traced to Galaxidis v Galaxidis [2004] NSWCA 111. There, after referring to the earlier decision of this Court in Australian Crime Commission v Gray [2003] NSWCA 318, Tobias JA stated at [93]:
"In my opinion, the effect of this Court's decision in Gray is that even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely." [Emphasis in original.]
34In a passage relied upon from the Court's judgment in Gray, it appeared that the Court had in some degree lowered the standard of clarity and lack of ambiguity identified by Mason and Deane JJ in Legione v Hateley [1983] HCA 11; 152 CLR 406 at 436-7. However, it is not necessary to inquire further as to the precise test. As the trial judge held in the present case, the "representation" proposed by the applicant was not capable, even if accepted in the terms proposed, of giving rise to the necessary element of unconscionability on the part of the Bank, in the departing from the "representation".
35The second specific matter, which appeared to find no home in the grounds of appeal, was that the trial judge had failed to deal with an argument based on the terms of the Bank's statement of claim. Paragraph 9 of that document stated that the defendant (Zippoz) "first went into default under the Agreement on or about October 2008 when it failed to make repayments as due under the Agreement". Ms Caporale submitted that if, as the Bank implicitly admitted, the first default occurred in October 2008, there had been no previous "default". Accordingly, the failure to make monthly repayments between March 2007 and October 2008 must have been because of the promise by the Bank not to require compliance with the terms of the agreement. She referred to clause 18 of the "Facility Agreement General Terms" which included a failure to pay on time as a ground of "default".
36However, as the Bank submitted, clause 19.1 of the General Terms required that the Bank give a notice requiring that the default be remedied within a specified period and that it is only upon the failure to rectify the default within the period allowed that the Bank is then entitled to sue for the amount owing or to enforce any security. The term "default" is not a term of art, but it is used to refer to a failure to comply with a default notice and is commonplace in such proceedings: see, eg, Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295, particularly at [57] and [64] (Meagher JA). It is accepted in the present case that a document described as "default notice and notice pursuant to s 57(2)(b) of the Real Property Act, 1900" dated 16 October 2008 was served on the applicant and that it was the applicant's failure to comply with the notice which grounded the entitlement to take enforcement proceedings. So understood, paragraph 9 of the statement of claim could not be relied upon for the inference identified by the applicant.
37Otherwise, the draft notice of appeal contained some 42 paragraphs setting out grounds. Most of the other grounds were unclear in their scope, without substance, or repetitive. However, for completeness, the following grounds should be noted.
38Ground 18 stated that the judge failed to find that the respondent's witness "was not a credible witness" whose evidence could not be relied on. The limitations on an appellate court intervening on such a basis in circumstances where the findings of the trial judge accord with what might objectively be expected in the circumstances, are well established. The ground was not, in any event, elucidated by reasons which would allow an appellate court to make such a finding, in accordance with the principles in Fox v Percy [2003] HCA 22; 214 CLR 118.
39Grounds 34-49 involved challenges to specific paragraphs of the reasoning of the trial judge. These included the challenges to the following:
(a) the failure to find that the limitations on Mr Vale's authority within the Bank were not communicated to the appellant: grounds 34-37, 39 and [12], [22];
(b) the finding that Ms Caporale had presented no "concrete proposal" capable of "serious consideration": grounds 38, 42, 43 and [23], [27];
(c) the finding that the defendants could no longer pay the instalments on the loans, for reasons which were not revealed by the evidence: ground 40 and [25];
(d) the finding that the change, in late 2007 or early 2008, of the site for the proposed development to a site which was not the subject of security held by the Bank was significant from the Bank's perspective: ground 41 and [26];
(e) the finding that in the absence of any discussion with the Bank as to the nature of the project, the possibility of obtaining funds "from investors" was remote and uncertain and also constituted an inadequate basis for the estoppel: grounds 46, 47 and [29].
40The reasons given by the trial judge were more than sufficient to demonstrate why he made the challenged findings. The appellant has failed to demonstrate an arguable case giving rise to a real prospect that such findings might be overturned. In those circumstances, no grounds have any real prospect of success. It has not been necessary to traverse them all because the applicant failed at several steps; as noted above, if it failed in its challenge at any one step, such as the making of the alleged representation, the appeal must fail.
41In these circumstances, the submissions put forward by the Bank were accepted. The application for an extension of time within which to appeal was refused and the stay in respect of the execution of a writ of possession with respect to the applicant's property was vacated. The applicant was ordered to pay the Bank's costs of the proceedings in this Court.