Ta Lee Investment Pty Ltd v Antonios

THE COURT: This appeal concerns a dispute as to title to a lot in a newly developed apartment block. In 2011, the second respondent, MV Developments (Lane Cove) Pty Ltd (in liq) (MV Developments), borrowed $1.5 million from the appellant, Ta Lee Investment Pty Ltd (Ta Lee), to develop certain land in Lane Cove, known as the Aurora site, into an apartment block under a Deed of Loan and Guarantee (the Deed). The Aurora site comprised four adjoining lots, each with separate titles.

The Deed entitled Ta Lee, following an event of default, to lodge and maintain a caveat on the titles to the Aurora site until it received full payment of all moneys due under the Deed. An event of default occurred when MV Developments failed to make an interest payment required under the Deed.

Following the completion of the development, Ta Lee lodged two caveats claiming an equitable charge in respect of a particular apartment, namely, Lot 34. The first respondent, Mr Antonios, subsequently lodged a caveat claiming an interest in Lot 34 as the purchaser of the apartment under an alleged contract for the sale of land with MV Developments dated 15 April 2015.

The primary judge, Emmett AJA, found that Ta Lee did not have an equitable charge over Lot 34 and that Mr Antonios had entered into a contract to purchase Lot 34, for which he had paid the entire purchase price: Bradley Mark Lum v MV Developments (Lane Cove) Pty Ltd (in liquidation) [2018] NSWSC 247. His Honour ordered the withdrawal of Ta Lee’s caveats and the transfer of Lot 34 to Mr Antonios.

On 29 March 2018, MV Developments transferred Lot 34 to Mr Antonios. On 10 April 2018, the transfer was registered.

On 16 April 2018, Ta Lee filed a notice of appeal, which raised the following issues:

A preliminary issue was also raised during the hearing regarding whether Ta Lee had standing to bring the appeal.

On 17 October 2011, Ta Lee, as lender, MV Developments, as borrower, MV Developments (Aust) Pty Ltd (MV Aust) and Mr Victor Fong, the sole director of MV Developments and MV Aust, entered into the Deed. The recitals to the Deed stated that MV Developments, MV Aust and Mr Fong had requested Ta Lee to lend to MV Developments $1.5 million for the acquisition and development of the Aurora site. By recital G, MV Developments acknowledged that the relationship between it and Ta Lee was “simply that of a lender (creditor) and borrower (debtor)”. MV Aust and Mr Fong were parties to the Deed as guarantors.

Ta Lee agreed to lend the $1.5 million to MV Developments by way of a preliminary advance of $900,000 and a further advance of $600,000. By cl 3.1 of the Deed, MV Developments acknowledged having received the preliminary advance on 11 August 2011. Pursuant to cl 3.3, Ta Lee promised to make available to MV Developments the further advance on 12 October 2011 or on such later date as required by MV Developments.

Clause 4 set out the due date for the repayment of the loan and interest payments:

Clause 1.2(c)(i) provided that a failure on the part of MV Developments to repay the loan on 9 December 2013 or pay any instalment of interest on the prescribed interest payment date, namely, the 15th day of each month, for more than five business days constituted an event of default. Clause 7.1 identified the following further events of default:

Clause 7.2 set out the consequences of default as follows:

Clause 8 set out the covenants of the guarantors, MV Aust and Mr Fong:

No part of the $1.5 million borrowed by MV Developments was repaid by 10 June 2013. Indeed, prior to 12 November 2015, MV Developments had made no payments under the Deed. Accordingly, pursuant to cl 1.2(c)(i), an event of default occurred on 20 June 2013, when MV Developments failed to make the required interest payment in accordance with cl 4.3.

On 15 December 2014, the four lots that constituted the Aurora site were consolidated into a single title. On 16 April 2015, the lot was subdivided by the registration of a strata plan consisting of 56 lots.

Ta Lee lodged a caveat in respect of Lot 34 on 23 June and 4 August 2015 respectively. The interest claimed in the first caveat was a “[r]ight to caveat” by virtue of the right conferred by cl 7.2 of the Deed. The interest claimed in the second caveat was an “[e]quitable charge” by virtue of the following:

Mr Antonios contended that he entered into a contract with MV Developments to purchase Lot 34 for $910,000 on 15 April 2015. He gave evidence concerning the formation of the contract in his affidavit dated 7 April 2017, as well as during the course of cross-examination. His evidence was as follows.

In December 2014, Mr Antonios, a professional poker player, had the following telephone conversation with Mr Fong in relation to a possible loan to Mr Fong:

On or about 13 December 2014, Mr Antonios withdrew $200,000 in casino chips from his “Cage” account, of which he gave Mr Fong $150,000 in chips.

On 17 February 2015, Mr Fong showed Mr Antonios around the Aurora site and through some of the completed apartments. On or around the same day, Mr Antonios asked Mr Fong whether he needed his bank details again “for the $150,000”. Mr Fong replied that he would let Mr Antonios know when the funds were ready.

On 25 February 2015, Mr Antonios and Mr Fong had the following conversation (Blue 17[18]):

Mr Antonios gave Mr Fong $50,000 in casino chips and Mr Fong wrote Mr Antonios a cheque for $200,000 on the account of MV Aust. Mr Fong asked Mr Antonios not to cash the cheque until there were funds in the account.

On 31 February 2015, Mr Antonios asked Mr Fong if he could cash the cheque, to which Mr Fong replied “[n]ot yet”, as he was a “bit tied up with things”. Mr Fong said that he would let Mr Antonios know “when it’s ready”. Mr Antonios had two or three similar conversations with Mr Fong between 31 February and 24 March 2015. He never banked the cheque.

On 24 March 2015, Mr Fong asked Mr Antonios if he could borrow a further $110,000. Mr Antonios withdrew $110,000 in casino chips, which he gave Mr Fong. They had the following conversation:

The following day, Mr Antonios had a conversation with Chris Ayoub, a builder who Mr Antonios knew worked with Mr Fong and his development companies, who told Mr Antonios that:

On or around 31 March 2015, Mr Antonios had the following conversation with Mr Ayoub and Joe Nassif, a construction manager who Mr Antonios knew worked with Mr Fong’s development companies:

Mr Antonios met with Mr Ayoub and Mr Nassif again on or around 2 April 2015, during which the following conversation took place:

On 13 April 2015, Mr Antonios met with Mr Fong at his office, during which the following conversation took place:

Mr Fong then wrote the following note in Mr Antonios’ presence:

Mr Nassif and Mr Ayoub then entered the office, and the following conversation occurred:

On 14 April 2015, Mr Antonios met with Mr Fong in his office again, during which the following conversation took place:

Later that day, Mr Fong emailed Mr Antonios the front page of a contract for the sale of Lot 34 for $910,000. Mr Fong also sent Mr Antonios a letter “confirm[ing] that Alexander James Antonios … has paid the company the total sum of $910,000 … for the purchase of [Lot 34]”.

On the morning of 15 April 2015, Mr Antonios forwarded Mr Fong’s email of 14 April 2015, including the attached front page, to Mr Ayoub and Mr Mansour. Mr Antonios and Mr Fong also had the following telephone conversation:

At around 1:30pm that day, Mr Antonios attended at Mr Fong’s office, where he was greeted by Mr Nassif and Mr Ayoub. Mr Antonios waited while Mr Mansour finalised the contract. At around 7:30pm, Mr Ayoub printed two copies of a contract for the sale of land and two copies of a deed of agreement, which he placed before Mr Antonios and Mr Fong.

The parties to the deed of agreement were Mr Antonios, MV Developments and Mr Fong. The recitals stated as follows:

“Contract”, “Price” and “Property” were defined as follows:

Mr Antonios gave evidence that, apart from glancing at the contract for sale and the deed of agreement, he did not read them. He also accepted in cross-examination that he did not recall what was attached to the front pages of the contracts for sale.

Mr Antonios and Mr Fong each signed each page of both copies of the deed of agreement, witnessed by Mr Nassif. Mr Antonios then signed the front page of one copy of the contract for sale, and Mr Fong signed the front page of the second copy, again witnessed by Mr Nassif. These pages were the same as the front page Mr Fong had emailed Mr Antonios on 14 April 2015, which Mr Antonios had forwarded to Mr Ayoub and Mr Mansour the following morning.

Mr Nassif then handed Mr Antonios one of the copies of the deed of agreement and the copy of the contract for sale signed by Mr Fong. The following conversation then took place:

Mr Antonios placed $200,000 in cash on the table. He then had the following conversation with Mr Fong:

On 16 April 2015, Mr Antonios took $50,000 in casino chips to the casino, where he met Mr Ayoub and Mr Nassif. He withdrew a further $150,000 in chips from his Cage account, and gave Mr Ayoub and Mr Nassif the $200,000 in chips. On the same day, he transferred $100,000 to the bank account Mr Fong had provided him with. He transferred a further $100,000 to that account the following day.

Mr Antonios gave evidence that, on 23 May 2015, he was given the keys to Lot 34 by Mr Fong. According to Mr Antonios, they then had the following conversation:

The primary judge found, at [41], that “it [was] difficult to see why [MV Developments] would have handed over the keys to the Apartment unless it was for the purpose of giving possession to Mr Antonios”. Ta Lee challenged this finding on the appeal. It also challenged the primary judge’s finding that Mr Fong provided Mr Antonios with the keys to Lot 34.

On 14 July 2015, Cluff & Associates Solicitors, who acted on behalf of Mr Antonios in relation to the purchase of Lot 34, wrote to the then administrators of MV Developments, stating:

Attached to this letter was the letter of 14 April 2015 from Mr Fong confirming the payment of $910,000, set out above at [32].

The administrators of MV Developments replied on 16 July 2015, stating that they had previously been provided with a copy of the signed front page of the contract and asking for a copy of the full contract.

Around this time, Mr Antonios asked Mr Fong to send him a full copy of the contract. On 21 July 2015, Mr Fong sent Mr Antonios an email, attached to which was a contract for the sale of land, comprising an unsigned front page and 122 further pages.

Relevantly, cl 2 of that contract provided as follows:

In the body of the email, Mr Fong stated “[a]ttached is the sales contract. Please replace front page with the signed one”. In accordance with these instructions, Mr Antonios attached the front page signed by Mr Fong on 15 April 2015 to the balance of the contract that was emailed to him. It will be convenient to refer to this contract as the ‘reconstructed contract’.

In addition to being unsigned, the front page that was emailed to Mr Antonios differed from the front page Mr Fong had signed on 15 April 2015 in the following respects: first, the signed front page stated that the vendor was acting for itself, whereas the unsigned front page identified a firm of solicitors; secondly, there were differences in the description of the land the subject of the sale; thirdly, the purchaser’s solicitor was identified in different terms; and fourthly, and most importantly, the price and the deposit differed. The signed front page specified a price of $910,000, a deposit of $910,000 and a nil balance. The unsigned front page specified a price of $1,250,000, a deposit of $125,000 and a balance of $1,125,000.

On 23 July 2015, Cluff & Associates Solicitors wrote to the administrators of MV Developments as follows:

On 28 August 2015, the administrators’ solicitors replied in the following terms:

On 6 June 2016, Mr Antonios lodged a caveat claiming an “[e]quitable interest” in Lot 34 on the basis of the alleged contract for sale dated 15 April 2015.

During the hearing, an issue was raised regarding whether Ta Lee had standing to bring the appeal. Ta Lee submitted that it had standing on the basis that the orders made by the primary judge affected its interest in Lot 34, that being, as Ta Lee asserted, an equitable interest in the property. Ta Lee relied on John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 in support of this submission.

Ta Lee also relied on the Court’s power pursuant to the Supreme Court Act 1970 (NSW), s 75A(10) to “make any finding … give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires” and the Uniform Civil Procedure Rules 2005 (NSW), r 51.54, which provides that:

Mr Antonios submitted that, in circumstances where there was no privity of contract between Ta Lee and Mr Antonios, there was no dispute as to priority between the parties – Ta Lee having accepted that, if the rights in relation to Lot 34 asserted by Mr Antonios were to be upheld, they would take priority over any rights Ta Lee may have in relation to Lot 34 – and no authorisation was given to Ta Lee to bring proceedings on MV Developments’ behalf, Ta Lee lacked standing to bring the appeal.

Mr Antonios sought to distinguish the present case from John Alexander's Clubs on two bases. First, he submitted that, unlike in John Alexander’s Clubs, Ta Lee had abandoned any claim to priority. Secondly, he submitted that the present case concerned an asserted existing interest in land, whereas John Alexander’s Clubs concerned the creation of a new interest, namely a constructive trust. Accordingly, Mr Antonios submitted that once Ta Lee had conceded the issue of priority, its interest in the dispute was at an end.

Mr Antonios also submitted that, even assuming Ta Lee had an equitable interest in Lot 34, that interest had been extinguished by the registration of the transfer on 10 April 2018. In other words, to the extent that Ta Lee had standing to bring the appeal, Mr Antonios submitted that this was defeated by the indefeasibility provisions of the Real Property Act 1900 (NSW). Mr Antonios also submitted that Ta Lee did not have a claim in personam against Mr Antonios. Mr Antonios submitted that any rights that existed in personam existed as between MV Developments and Ta Lee, pursuant to the Deed. It was Mr Antonios’ primary submission on the appeal that, accordingly, the appeal lacked utility.

Mr Antonios is the present registered proprietor of Lot 34. He became the registered proprietor pursuant to an order for specific performance made by the primary judge on 20 March 2018. The terms of that order required MV Developments:

The “Contract” was defined in the Court’s orders as the contract dated 15 April 2015 between MV Developments and Mr Antonios.

At the same time, Ta Lee was ordered to withdraw its registered caveats from the title of the property, pursuant to the Real Property Act, s 74MA(2). That order was made consequent upon the declaration made by the primary judge that Ta Lee:

Both MV Developments and Ta Lee complied with the orders.

The effect of Mr Antonios having become the registered proprietor is governed by the Real Property Act, s 42, which provides, relevantly:

No case of fraud was alleged, and nor was it suggested that any of the exceptions to the indefeasibility conferred by registration applied. In particular, it was not alleged that the following exception in s 42(1)(a) applied:

The presence of a caveat does not fall within this exception and, in any event, Ta Lee removed the caveat as required by the order made by the primary judge.

On the appeal, Ta Lee’s case was that it had a caveatable interest pursuant to cl 7.2 of the Deed. It claimed that interest was an equitable charge over Lot 34 securing the full payment of all moneys payable to it under or pursuant to the Deed. At a practical level, to maintain that case such that Mr Antonios’ interest as the legal and beneficial owner of Lot 34 was subject to Ta Lee’s claimed interest, it was necessary for Ta Lee to challenge the primary judge’s order requiring MV Developments to specifically perform the contract for the sale of Lot 34. MV Developments did not challenge that order before it was complied with.

The question is, therefore, whether Ta Lee has standing to challenge that order and the declaration that the contract for the sale of Lot 34 by MV Developments to Mr Antonios was valid and enforceable.

In John Alexander’s Clubs, the High Court held, at [131], that:

The High Court referred, at [132], to the Full Federal Court’s decision in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870, in which the Court stated, at 524-525, that:

The High Court made the following further observations, in circumstances where John Alexander’s Clubs was a necessary party. First, at [133], as the relief granted to White City Tennis Club involved a transfer of land, which, once registered, would become indefeasible, that relief directly affected the interests of other persons claiming an interest in the land. Secondly, at [134], as one of the claims was that White City Tennis Club never had an interest in the land, the party whose standing was at issue was entitled to challenge the Club’s case and to call evidence and be heard against that case. Thirdly, at [136], the usual rule is that a party directly affected by an order in proceedings to which it was a necessary party but to which it was not joined is entitled as of right to have the order set aside.

In the present case, Ta Lee sought relief in its cross-claim that it had an equitable charge over Lot 34, that that charge ranked in priority to any equitable interest Mr Antonios had in respect of Lot 34, although it abandoned that claim in the court below, and sought an order that Lot 34 be sold. Mr Antonios, for his part, sought in his cross-claim an order that the contract be declared to be valid and enforceable and sought an order for specific performance. He also sought a declaration that Ta Lee did not have an equitable interest, or, alternatively, if it did, it did not rank ahead of his equitable interest.

This case is unlike John Alexander’s Clubs as Ta Lee was both a claimant that brought proceedings against Mr Antonios and a respondent in proceedings brought by Mr Antonios, where the relevant rights of the parties were in issue. Nonetheless, we are of the opinion that the principles in John Alexander’s Clubs apply, at least by analogy. Accordingly, we consider that Ta Lee has standing to bring the appeal.

However, there is a related question, namely, whether the appeal has any utility in circumstances where Mr Antonios has become the registered proprietor of Lot 34. As explained below, we do not accept that Ta Lee had a caveatable interest and propose that the appeal be dismissed. Even if we are wrong in that conclusion, Ta Lee has removed the caveats it had lodged on the title. In doing so, it did not have any agreement with Mr Antonios that his registered title be subject to its equitable charge if it successfully challenged the declaration that it did not have an equitable interest in Lot 34.

Nor did Ta Lee seek a stay of the primary judge’s order for specific performance so as to preserve its position should this Court determine that it had an equitable interest in Lot 34. The consequence of that, in our opinion, is that, pursuant to the Real Property Act, s 42(1), Mr Antonios holds his registered interest in Lot 34 free from any interest claimed by Ta Lee.

When this matter was raised at the commencement of the hearing of the appeal, Ta Lee contended that if the primary judge erred in determining that it did not have an equitable interest in the property, this Court could set aside the orders pursuant to the Supreme Court Act, s 75A(10).

However, that suggested outcome depends on Ta Lee defeating Mr Antonios’ indefeasible title to Lot 34, which was acquired on registration. There are two reasons why we consider that Mr Antonios’ title cannot now be made subject to any equitable charge that Ta Lee may have. First, the exceptions to indefeasibility are those specified in s 42. None is presently applicable. Secondly, to the extent that s 75(10) might be said to permit the Court to set aside the orders that were made by the primary judge, that section is subject to s 42(3), which provides:

Thirdly, whilst the principle of indefeasibility does not prevent the enforcement of a personal equity against a registered proprietor: see Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16, there is no evidence in the present case of any conduct of Mr Antonios, such as the giving of an undertaking or the making of a promise to Ta Lee, which would have given rise to such an equity against him.

Accordingly, we are of the opinion that as the appeal is futile, it should be dismissed. However, it is appropriate that we nonetheless express our reasons why we consider that Ta Lee fails on the third issue on the appeal.

The primary judge noted, at [70], that if the Court was satisfied that there was a binding contract for the purchase of Lot 34 between Mr Antonios and MV Developments that was capable of specific performance, Ta Lee had accepted that, even if it had an equitable charge over Lot 34, that charge would not take priority over the Mr Antonios’ entitlement. His Honour further noted that as he had determined that Mr Antonios and MV Developments had entered into a contract for the sale of Lot 34, and as he had found that the whole of the purchase price had been paid, there was nothing upon which the equitable charge for which Ta Lee contended could operate. His Honour nonetheless dealt with the question.

After setting out the terms of the Deed, his Honour observed, at [78], that there was no express reference in the Deed to the grant of security in the nature of a charge and that recital G acknowledged that the relationship between Ta Lee and MV Developments was “simply that of lender (creditor) and borrower (debtor)”.

His Honour, at [82], recorded Ta Lee’s argument that the effect of cl 7.2 “was to authorise [it] to create an equitable charge over the Aurora Site caused by lodging a caveat upon default by [MV Developments]”. His Honour referred to the Real Property Act, s 74F whereby Ta Lee’s right to lodge a caveat depended upon whether it had a legal or equitable interest in the Aurora site. Ta Lee contended that a contractual right to lodge a caveat must be taken to be intended to have some effect, otherwise such a caveat could be removed by order of the Court.

His Honour next referred, at [83], to Ta Lee’s argument that the right conferred by cl 7.2 was exercisable on the occurrence of an event of default and that the caveat could be maintained until full payment had been made. On that argument, Ta Lee submitted that the purpose of cl 7.2 was to enable it to have a security in respect of the Aurora site, being an equitable charge. Otherwise, it argued, the clause would have no purpose.

His Honour rejected this argument, commenting that a commercial purpose might be gleaned from the fact that, if a caveat was lodged, Ta Lee would be assured of notification if there were any intended dealings with the site, for example, if MV Developments took steps to sell or assign the Aurora site. Such action would itself be an event of default under cl 7.1. As his Honour pointed out, it was clear that Ta Lee was prepared to make funds available to MV Developments but only so long as it was engaged in developing the Aurora site.

His Honour, at [85], then stated the principles governing the existence of a caveatable interest, as follows:

However, as his Honour stated, at [86]:

His Honour referred to the reference in the Deed to “security” in cl 8.1(c) of the guarantee provisions set out above at [13]. “Secured Moneys” were defined in cl 1.2(r) to mean:

His Honour continued, at [88], that:

His Honour considered that the terms of recital G, whilst possibly negating the suggestion of a joint venture or that Ta Lee had any beneficial interest in the development, also tended to negate any suggestion that security by way of a charge was intended. His Honour concluded, at [88], that:

His Honour considered that the fact that the contractual right to lodge a caveat was in respect of the Aurora site and did not expressly extend to a right to lodge a caveat in respect of individual lots tended to support his conclusion that there was no intention to create an equitable charge or interest over any part of the Aurora site. His Honour acknowledged, however, that if the better view were that there was an intention to create an equitable charge, it would be curious if that right did not extend to individual lots within the development.

Ta Lee claimed that it had an equitable charge over Lot 34 pursuant to cl 7.2(a) of the Deed. It acknowledged that whether a contractual term authorising the lodgement of a caveat creates an equitable charge depends upon the proper construction of the contract. It cited Troncone v Aliperti (1994) 6 BPR 13,291 as authority for the proposition that a contractual clause authorising the lodgement of a caveat carried with it an implication of a relevant caveatable interest. Ta Lee contended that in this case, where the authority to lodge a caveat was in respect of an obligation to pay money, the relevant interest was an equitable charge to secure payment of the money, subject to any contrary intention.

Ta Lee relied upon the following observation of McLelland CJ in Eq in Coleman v Bone (1996) 9 BPR 16,235 at 16,239:

In Troncone v Aliperti, the contractual clause with which the Court was dealing was:

Mahoney JA, in determining that the caveats should not be set aside, stated:

His Honour continued:

In Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; [2011] NSWSC 1562, Bryson AJ reviewed the authorities dealing with contractual provisions authorising the lodgement of a caveat. His Honour observed, at [53], that it was necessary to commence with the basic principle stated in Murphy v Wright (1992) 5 BPR 11,734:

Bryson AJ noted that the contractual clause in Murphy v Wright included the phrase:

Bryson AJ also referred to the passage from Coleman v Bone set out above, as well as to a similar observation by Young CJ in Eq in Iaconis v Lazar (2007) 13 BPR 24,937; [2007] NSWSC 1103. Bryson AJ noted that Troncone v Aliperti had often been interpreted, as occurred in Coleman v Bone and Iaconis v Lazar, to mean that, in all cases, a clause conferring authority to lodge a caveat carried with it by implication the grant of an equitable charge. That was not, as his Honour observed, the “true principle”. Rather, in his Honour’s view:

I fully agree with this observation. His Honour’s view was also endorsed by this Court in Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393. In that case, Gleeson JA, with whom Meagher and Leeming JJA agreed, observed:

Underpinning the Court’s factual finding in Aged Care Services, as Gleeson JA noted, at [85], was the express reference in the discussions between the parties to Aged Care Services obtaining “security” by way of a “caveatable interest” over the relevant piece of land. The terms of that discussion, between the director of Aged Care Services and one of the owners of the property, was:

Shortly thereafter, a different proposal was advanced by the owner of the property, to which the director of Aged Care Services responded:

In the present case, whether or not Ta Lee had an equitable charge over Lot 34 depends upon the proper construction of cl 7.2. For the reasons just given, the question is not whether a contrary intention exists such that no implication should be drawn.

Clause 7.2 deals with the consequences of default by MV Developments in the repayment of the loan advanced to it by Ta Lee. It is not the only clause which does so. One consequence of default is provided for in cl 4.3, namely, the incurring of interest on the unpaid amount. Clause 7.2 specifies additional consequences of default and, relevantly, cl 7.2(a) provides that Ta Lee may:

There is no reference in cl 7.2(a) to Ta Lee having a secured interest over the property or a charge, or indeed that it is to have a caveatable interest. The only reference to security, to use that term neutrally, is in cl 8, which provides for the obligations of the guarantors and, even then, it is not used in terms of having a security interest. Rather, the reference is to the guarantors having agreed and promised to guarantee payment of the “Secured Moneys”, being a defined term in the Deed set out above at [86].

In our opinion, cl 7.2(a), on its proper construction, did not create an equitable interest or give rise to an equitable charge in favour of Ta Lee. First, as already mentioned, there is no reference to “security”, “secured interest”, “charge”, “caveatable interest”, or any other language which would point to Ta Lee having an equitable interest. The Deed was a professionally drafted business document. Had the parties intended for Ta Lee to have a secured interest, the Deed could have said so and it is to be expected that it would have made express provision to that effect.

Secondly, the parties used the language of “secured moneys” when specifying the obligations of the guarantors. Importantly, the parties, in recital G, characterised the relationship between Ta Lee and MV Developments as “simply that of a lender (creditor) and borrower (debtor)”: see above at [8]. This language is inconsistent with Ta Lee being a “secured creditor”.

Finally, as the primary judge observed, the right to lodge a caveat was not in respect of individual apartment lots in the development. Rather, the contractual right to lodge a caveat conferred by cl 7.2(a) was on the Aurora site or the consolidated title for the Aurora site. The Aurora site was defined by reference to its address and Title Folio Identifiers. It was consolidated into a single title on 15 December 2014.

There was no contractual right to lodge a caveat over any or all of the individual lots in the strata plan following the subdivision of the lot on 16 April 2015. The reason for this may be deduced from the terms of the Deed, which provided for a loan facility for the acquisition of the land and the development that was required to be repaid in just over two years. It is unlikely that a 56 unit development would be completed within that time. Events proved that to be the case. We would add that it would be unlikely that a loan facility of $1.5 million would be sufficient to acquire the Aurora site and build 56 apartments.

The more important point, however, is that there was no express contractual right to lodge a caveat over any lot in the strata plan. Nor was there any implication in cl 7.2(a) that the right to lodge a caveat over the Aurora site or over the consolidated title for the Aurora site included the right to lodge a caveat over any or all of the individual lots in the strata plan. Where a term is sought to be implied in fact to give business efficacy to a contract, it is necessary to satisfy the conditions, which may overlap, specified in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; namely:

See also Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51 at 605-606 per Mason J and Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 at [21] per French CJ, Bell and Keane JJ. In that case, Kiefel J, at [62], observed:

In our opinion, an implication that a caveat could be lodged over the individual lots in the strata plan does not satisfy the first three of these conditions and, arguably, may not satisfy the last condition. It was not necessary to give business efficacy to the Deed that there be a right to caveat over the individual lots. The Deed was effective without any such provision. This is proved on the facts of the case. Ta Lee’s position would have been protected had it lodged a caveat over the Aurora site or the consolidated title at any time after 20 June 2013, when MV Developments failed to make the first interest payment. There were further events of default thereafter when the monthly interest payments were not paid and, on 9 December 2013, when MV Developments failed to repay the loan.

Nor can it be said, having regard to the period of the loan, for the reasons given, that the implication of such a term “goes without saying”. Given that the implication of a right to lodge a caveat over the individual lots was not necessary to give business efficacy to the contract and did not go without saying, it is difficult to see that it is “reasonable and equitable” that the term be implied. Put another way, the right was simply not necessary given the term of the loan.

However, should there be such an implication, that does not alter our primary position that cl 7.2(a) did not confer an equitable interest by way of charge in favour of Ta Lee. That is so regardless whether there was an implied term in relation to the individual lots in the strata plan.

For this reason alone, the appeal should be dismissed with costs.

This conclusion, and the view that we have taken that the appeal is lacking in utility, is sufficient to dispose of the appeal. In deference to the arguments advanced on the appeal, we will deal briefly with the first and second issues on the appeal.

The primary judge, at [60], set out the four alternative formulations of the contract for sale propounded by Mr Antonios:

The primary judge held, at [63], that it was more likely than not that, on 15 April 2015, Mr Antonios and MV Developments, through Mr Fong, intended to enter into a binding contract for the sale and purchase of Lot 34. His Honour held that it was more likely than not that, apart from the front page, the pages attached to Mr Fong’s email of 21 July 2015 were the pages that had been placed before Mr Antonios and Mr Fong at Mr Fong’s office on 15 April 2015. In his Honour’s view, Mr Antonios and MV Developments intended that the contract would be constituted by the front page signed by Mr Fong on 15 April 2015 and those other pages attached to Mr Fong’s email of 21 July 2015, that is, the reconstructed contract.

In reaching this conclusion, his Honour rejected Ta Lee’s submission that a Jones v Dunkel inference should be drawn from the fact that Mr Antonios did not call Mr Fong, Mr Ayoub or Mr Mansour to give evidence. His Honour, at [49], had regard to the fact that Mr Fong had in fact sworn affidavits the contents of which “unambiguously” supported Mr Antonios’ case, although these affidavits were not read. His Honour considered that it was appropriate to have regard to the affidavits in circumstances where an explanation was proffered as to why they were not read. His Honour also found, at [50], that there was no proper basis for concluding that Mr Fong was in Mr Antonios’ ‘camp’, in light of the fact that he was the sole director of MV Developments.

His Honour, at [51], accepted Mr Antonios’ evidence in cross-examination that he no longer spoke to Mr Ayoub as a sufficient explanation for the failure to call Mr Ayoub. He also found that Mr Antonios and Mr Ayoub had had a falling out, such that Mr Ayoub could not be considered as being in Mr Antonios’ ‘camp’.

As for Mr Antonios’ failure to call Mr Mansour, his Honour noted, at [52], that there was no evidence that Mr Antonios ever met Mr Mansour or that Mr Mansour gave advice to him. His Honour found that, in circumstances where Mr Mansour was not involved in the exchange of the contracts and the only communication between Mr Antonios and Mr Mansour involved Mr Antonios forwarding him the email of 14 April 2015 from Mr Fong on the morning of 15 April 2015 and later paying an invoice, “it is difficult to see what Mr Mansour could have contributed”. His Honour found that, in any event, as Mr Mansour was the brother-in-law of Mr Ayoub, with whom his Honour found Mr Antonios had had a falling out, Mr Mansour could not be considered as being in Mr Antonios’ ‘camp’.

His Honour found that the drawing of a Jones v Dunkel inference did not “advance the matter further” in any event. As his Honour stated, at [53]:

In his Honour’s view, the deed of agreement signed by Mr Antonios and Mr Fong on 15 April 2015 corroborated the fact that Mr Antonios and MV Developments intended to enter into a binding contract for sale. His Honour acknowledged that no “[contract] for sale of land annexed hereto and marked ‘A’ ”, referred to in the deed, was in fact annexed to the deed, but found that it was clear that the parties intended “Contract” to be the reconstructed contract.

In particular, his Honour had regard to cls 3, 4 and 5 of the deed, which provided as follows:

His Honour, at [57], acknowledged the anomalous reference in cl 4 to “any balance of the Purchase Price”, but found that:

It is convenient to deal with the question whether the primary judge erred in declining to draw a Jones v Dunkel inference in respect of Mr Antonios’ failure to call Mr Fong, Mr Ayoub and Mr Mansour first.

Ta Lee submitted that, had his Honour drawn a Jones v Dunkel inference, his Honour could not have drawn inferences of fact favourable to Mr Antonios based on the available evidence.

It submitted that Mr Fong’s evidence was critical in respect of the question whether the contract attached to the email of 21 July 2015 was, save for the front page, identical to the contract signed on 15 April 2015, in that Mr Fong could have given evidence as to: the front page he had emailed Mr Antonios on 14 April 2015; the documents signed on 15 April 2015; what happened to the documents Mr Antonios left behind on 15 April 2015; the provenance of the contract he emailed Mr Antonios on 21 July 2015; and whether he intended to email Mr Antonios a copy of the contract signed on 15 April 2015.

Ta Lee submitted that the primary judge erred in having regard to Mr Fong’s affidavits in circumstances where they did not form part of the evidence. It also submitted that his Honour erred in finding that Mr Fong was not in Mr Antonios’ ‘camp’, in circumstances where “Mr Fong had assisted Mr Antonios by making affidavits for him”, notwithstanding the fact that Mr Fong was MV Developments’ sole director.

To the extent that Mr Antonios’ reason for not calling Mr Fong was that “Mr Fong’s evidence was not necessary to prove [his] case”, as noted by the primary judge at [49], Ta Lee submitted that this did not cease to make Mr Fong a witness that Mr Antonios would have been expected to call. Nor was it, on Ta Lee’s submissions, an explanation for Mr Fong’s absence.

Ta Lee submitted that, to the extent that Mr Ayoub acted as a liaison between Mr Antonios and Mr Mansour with respect to the drawing up of the contract, Mr Ayoub could have given evidence as to any instructions he provided Mr Mansour. Ta Lee also submitted that Mr Ayoub could have given evidence as to the documents he printed out and placed before Mr Fong and Mr Antonios on 15 April 2015, as well as what happened to the documents Mr Antonios left behind that day. Ta Lee submitted that the evidence did not support a finding that Mr Ayoub and Mr Antonios had had a falling out and that, given Mr Ayoub’s role in the transaction “as Mr Antonios’ agent”, he was in Mr Antonios’ ‘camp’.

Ta Lee submitted that Mr Mansour, who was responsible for drafting the contract, could have given evidence as to what he did with the front page attached to Mr Fong’s email of 14 April 2015, which Mr Antonios had forwarded him the following day, as well as what was in the contract he drafted. Ta Lee also submitted that Mr Mansour’s absence was unexplained. It submitted that, even if Mr Antonios and Mr Ayoub had fallen out, which it submitted they had not, the inference should not have been drawn that a solicitor would not have given evidence for a former client merely because the client had fallen out with one of the solicitor’s relatives.

Mr Antonios’ primary submission was that Ta Lee’s challenge to his Honour’s failure to draw a Jones v Dunkel inference was of no utility, as the primary judge found, at [53], that even if such an inference had been drawn, this would not have affected his Honour’s assessment of the evidence. Mr Antonios submitted that, in any event, his Honour did not err in declining to draw a Jones v Dunkel inference.

Mr Antonios relied on the fact that an explanation had been proffered for the withdrawal of Mr Fong’s affidavits, namely to enable the hearing to be concluded in the time allotted, in circumstances where Mr Fong’s evidence was not necessary to prove Mr Antonios’ case. Mr Antonios submitted that, irrespective of whether the primary judge ought to have considered the content of Mr Fong’s affidavits, their existence, being affidavits made in support of Mr Antonios’ case, was a sufficient basis for rejecting the suggestion that Mr Fong would have given evidence that would not have assisted Mr Antonios’ case.

Mr Antonios submitted that, conversely, if, as Ta Lee submitted, the primary judge ought not to have had regard to the content or existence of Mr Fong’s affidavits, then there was no basis for concluding that Mr Fong was in Mr Antonios’ ‘camp’, as he was the sole director of MV Developments.

Mr Antonios also submitted that there was no basis for concluding that Mr Ayoub was in Mr Antonios’ ‘camp’, in circumstances where Mr Ayoub was an employee or contractor of MV Developments. Mr Antonios rejected Ta Lee’s characterisation of Mr Ayoub as Mr Antonios’ “agent”. Mr Antonios also relied on the primary judge’s finding that Mr Ayoub and Mr Antonios had had a falling out as a sufficient explanation for Mr Antonios’ failure to call Mr Ayoub. Mr Antonios submitted that, in any event, Mr Ayoub’s evidence would not have added anything, as there was no reason to expect that Mr Ayoub’s recollection of the 123-page contract would have been any better than that of any other witness, including Mr Antonios.

Mr Antonios submitted that, for the reasons stated by the primary judge, there was no basis for concluding that Mr Mansour was in Mr Antonios’ ‘camp’. Further, Mr Antonios submitted that his Honour did not err in finding that the failure to call Mr Mansour was sufficiently explained. He submitted that, in any event, Mr Mansour’s evidence would not have added anything, due to his limited involvement in the transaction.

A trial judge, when faced with the absence of a witness who would have been expected to have been called by a party, may, if the failure to call the witness is unexplained, make an “inference that [the] evidence would not help [that party’s] case”: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 321; Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 at 480-481. A trial judge is more readily able to draw an affirmative inference in support of the opposing party’s case: Commonwealth v McLean (1996) 41 NSWLR 389; Manly Council v Byrne [2004] NSWCA 123 at [51].

In the present case, the absence of the witnesses was not unexplained. The sufficiency of the explanation was a matter for the primary judge. Putting to one side the explanation for not calling Mr Fong, there was no error in his Honour’s finding that the absence of Mr Ayoub and Mr Mansour had been explained. Accordingly, this basis for drawing a Jones v Dunkel inference did not arise in respect of those witnesses. In any event, even where the circumstances for drawing a Jones v Dunkel inference arise, a trial judge is not required to draw the inference. Rather, it is an available inference. Further, the consequences of drawing the inference are limited, as his Honour noted and as the statement of the principle to which we have referred makes clear.

The explanation for not calling Mr Fong was that Mr Antonios did not want the hearing of the case to extend beyond its allotted time. In making that decision, Mr Antonios had made a forensic decision that Mr Fong’s evidence was not necessary to prove his case. Whether that is so was a matter for Mr Antonios. However, as his Honour concluded, at [50], Mr Fong was not in Mr Antonios’ ‘camp’. That being so, the occasion for drawing a Jones v Dunkel inference did not arise.

His Honour considered, at [49], that it was appropriate to have regard to Mr Fong’s affidavits before declining to draw an adverse Jones v Dunkel inference in respect of Mr Antonios’ failure to call him. His Honour’s consideration of the affidavits is at least anomalous in circumstances where they were withdrawn and, it would seem, not relied upon by Mr Antonios for the limited purpose of the Jones v Dunkel issue. In our opinion, this question on the appeal can be determined against Mr Antonios without the need to refer to the content of the affidavits.

It follows that we reject Ta Lee’s complaint in respect of his Honour’s failure to draw a Jones v Dunkel inference.

Ta Lee submitted that Mr Antonios failed to prove, on the balance of probabilities, that the reconstructed contract was identical to the contract he and Mr Fong signed on 15 April 2015. Ta Lee submitted that there was insufficient information in Mr Fong’s email of 21 July 2015 to indicate that the attached contract was the same as the signed contract. Further, Ta Lee submitted that the “inevitable inference” to be drawn from the fact that the front page of the contract attached to the email of 21 July 2015 differed from the front page of the contract signed on 15 April 2015 was that the balance of the contract attached to the email was also different.

Mr Antonios submitted that it was immaterial that the front page of the contract attached to the email of 21 July 2015 differed from the front page signed on 15 April 2015, as Mr Fong instructed Mr Antonios to discard the front page of the emailed copy.

Mr Antonios submitted that, having regard to the evidence, the reconstructed contract was the same as the contract signed on 15 April 2015. In addition to relying on the deed of agreement, Mr Antonios drew the Court’s attention to the fact that on the front page of the contract signed by Mr Fong on 15 April 2015, “Completion date” was defined as “See Special Condition 30.1 (clause 15)”. The contract attached to the email of 21 July 2015 contained “Special conditions for the Sale of: Unit 34”, including a special condition 30.1, which defined “Completion Date”.

Mr Antonios also relied upon the note prepared by Mr Fong on 13 April 2015, set out above at [29], and the letter of 28 August 2015 from the solicitors of MV Developments’ administrators, set out above at [52], to the extent that it referred to “clause 33.1 of the Contract”. Clause 33.1 of the “Special conditions for the Sale of: Unit 34” contained in the contract attached to the email of 21 July 2015 provided that the “Purchaser shall not lodge a caveat on the title to the Property prior to completion”.

In respect of his Honour’s finding, at [54], that Mr Antonios and MV Developments had intended to enter into a binding contract, Ta Lee submitted that this was irrelevant to the question whether they had entered into the reconstructed contract, which was to be determined objectively. To the extent that the primary judge relied on the deed of agreement as corroboration, Ta Lee submitted that it was “fatally incomplete”, as no “[contract] for sale of land annexed hereto and marked ‘A’ ” was in fact annexed to the deed, and, accordingly, it did not assist in determining the form of the contract signed on 15 April 2015.

Ta Lee submitted that his Honour erred in finding that “Contract” under the deed of agreement referred to the reconstructed contract. Ta Lee submitted that as the deed provided that the “Price” of $910,000 was a discount from the “Purchase price under the Contract” and released Mr Antonios from the obligation to pay the balance of the “Purchase Price”, the “Contract” referred to in the deed must have specified a price of more than $910,000 and therefore could not have been the reconstructed contract.

Ta Lee also relied on the fact that the reconstructed contract did not deal with the $310,000 Mr Antonios had lent Mr Fong prior to 13 April 2015, which Mr Fong subsequently agreed to “treat … as a deposit”. Ta Lee submitted that in order to be treated as a deposit, Mr Antonios’ right to repayment needed to have been assigned to MV Developments as part payment of the purchase price, which did not occur.

Mr Antonios submitted that the objective intention of the parties was a critical consideration. Mr Antonios also submitted that it was open to the primary judge to find that the deed of agreement corroborated the fact that the contract signed on 15 April 2015 was the same as the reconstructed contract. He submitted that, to the extent that the contract for sale and deed of agreement were signed on the same day and at the same time, it was clear that “Contract” referred to the reconstructed contract.

During the hearing of the appeal, a question arose as to whether the contract entered into between Mr Antonios and MV Developments could have been constituted solely by the front page signed by Mr Fong on 15 April 2015, this being one of the alternative formulations propounded by Mr Antonios in the court below. Ta Lee submitted that the front page alone was not capable of constituting a contract as it did not contain any promises and lacked material terms, including terms governing the payment of the deposit. Ta Lee submitted that the front page was merely a series of definitions.

Mr Antonios contended that the contract could have been constituted by the front page signed by Mr Fong on 15 April 2015 together with the deed of agreement. Mr Antonios submitted that, taken together, the documents contained all the material terms necessary to give effect to the agreement between Mr Antonios and MV Developments.

Had Mr Antonios sought, on the appeal, to contend that his Honour’s judgment could be upheld on the basis that the contract comprised the front page together with the deed of agreement, he should have filed a notice of contention. As he did not, we consider that that argument ought not be entertained.

The question in this case was whether Mr Antonios had established that the reconstructed contract was the contract that had been entered into. For that reason, it is not necessary to deal with the primary judge’s remarks relating to the parties’ intention.

The question whether there was a contract entered into between the parties, being the reconstructed contract for the sale of Lot 34, was essentially a question of fact: either the evidence was sufficient to prove that the parties had entered into such a contract or it was not. The primary judge’s conclusion on this, after dealing with the Jones v Dunkel issue, is to be found at [53], where his Honour stated:

The evidence supported that finding. The evidence was clear that Mr Antonios and Mr Fong on behalf of MV Developments signed a contract for the sale of Lot 34 on 15 April 2015. The front page of the contract was in evidence. Mr Antonios’ explanation as to what occurred when the balance of the contract was sent on 21 July 2015 was, it seems, accepted by his Honour. In any event, Ta Lee has not demonstrated any reason why that evidence should not be accepted.

In addition, for the reasons explained by Mr Antonios in his submissions, there was a correspondence between various terms on the front page of the signed contract and those in the balance of the contract attached to the email of 21 July 2015. Further, as his Honour noted, it was common ground between Mr Antonios and MV Developments that the balance of the contract was constituted by the pages sent by email on 21 July 2015. Nor was there any error in his Honour referring to the deed of agreement between Mr Antonios and MV Developments as corroboration.

His Honour clearly recognised that proof that Mr Antonios and MV Developments had entered into a contract for the sale of Lot 34 on the terms of the reconstructed contract was not straightforward. However, his Honour found on the facts that the parties had done so. That finding was open to his Honour and no basis for setting it aside has been demonstrated.

The primary judge found, at [64], that all of Mr Antonios’ obligations under the contract for sale had either been performed or performance had been waived by MV Developments. His Honour considered that the deed of agreement and Mr Fong’s letter of 14 April 2015 confirming the payment of $910,000 clearly demonstrated that MV Developments accepted that the deposit had been paid.

His Honour also noted, at [13], that the proceedings were conducted on the basis that a delivery of casino chips was equivalent to a payment of money. Accordingly, the question whether a tender of chips would constitute a tender of payment did not arise.

Assuming that Mr Antonios and MV Developments did in fact enter into the reconstructed contract, Ta Lee submitted that Mr Antonios only paid $2,000 of the $910,000 deposit he was required to pay.

Ta Lee relied on Brien v Dwyer (1978) 141 CLR 378; [1978] HCA 50 in support of the proposition that the manner specified in the contract for payment of the deposit had to be observed strictly. It did not contend that Mr Antonios had not paid the sum of $910,000 as he deposed. Rather, Ta Lee submitted that none of the payments made by Mr Antonios were made in accordance with cls 2.2 and 2.4, set out above at [48], other than $2,000 of the cash he gave Mr Fong on 15 April 2015: the $310,000 in casino chips was not given to MV Developments “on the making of this contract” and was not in the form of cash or cheques; the $200,000 in cash given to Mr Fong on 15 April 2015 exceeded the $2,000 limit; and both the $200,000 in chips given to Mr Ayoub and Mr Nassif and the $200,000 worth of electronic funds transfers to MV Aust were not given to MV Developments and were not in the form of cash or cheques. Ta Lee submitted that if the parties intended for or agreed to some different manner of payment, it was necessary for them to have varied the contract to so provide, which had not been done.

Ta Lee submitted that neither the deed of agreement nor the letter of 14 April 2015 established that the deposit had been paid. It submitted that the deed was irrelevant as it was an independent agreement from the reconstructed contract. It submitted that, in any event, cl 5 of the deed required Mr Antonios to pay $600,000.

The primary judge accepted, at [30], that the statement contained in the letter of 14 April 2015 that Mr Antonios had paid the total sum of $910,000 was false. Ta Lee submitted that, accordingly, the letter was incapable of showing that the deposit had been paid or that MV Developments accepted that it had.

Mr Antonios pointed to the fact that Mr Fong, on behalf of MV Developments, accepted Mr Antonios’ payments in the form in which they were made. Mr Antonios also pointed to the fact that MV Developments did not seek to terminate the contract pursuant to cl 2.5, which entitled it to terminate for non-compliance with cl 2. Mr Antonios submitted that by handing over the keys to Lot 34 to Mr Antonios, MV Developments waived its right to object to the form of Mr Antonios’ payments. In these circumstances, Mr Antonios submitted that the primary judge did not err in finding that Mr Antonios had paid the entire purchase price.

Ta Lee’s contention that the deposit had not been paid must fail essentially for the reasons found by the primary judge.

First, the primary judge observed, at [13], that the proceedings were conducted on the basis that a delivery of casino chips was equivalent to the payment of money. His Honour observed that the question “whether a tender of casino chips would constitute a tender of payment of money did not arise”. His Honour’s observation was not challenged on the appeal, although, of itself, it does not answer the ground of appeal that cls 2.2 and 2.4 required strict compliance.

Secondly, the decision in Brien v Dwyer upon which Ta Lee relied is not precisely on point. The question in that case was when, on the proper construction of the contract, the deposit had to be paid, namely, “upon the signing of [the] agreement” as stipulated in the contract, or within a reasonable time thereafter. That does not assist in determining whether strict performance was required on the terms of the contract between Mr Antonios and MV Developments.

Thirdly, MV Developments accepted the moneys as paid by Mr Antonios, whether in cash, casino chips or electronic funds transfer. MV Developments also accepted Mr Antonios’ payment by way of settlement of Mr Fong’s debt. In that respect, the fact that that was Mr Fong’s debt and not MV Developments’ debt is a matter of accounting between Mr Fong and MV Developments.

Fourthly, for the first and third of these reasons, MV Developments ‘waived’ its right to insist on payment in accordance with the contract.

Finally, by giving Mr Antonios the keys to the apartment, MV Developments’ conduct could be viewed as an admission or acknowledgement that the purchase price had been paid. To the extent that Ta Lee challenged whether the keys had in fact been handed over, we do not consider, based on the evidence, that it has made out this challenge.

The third of these reasons requires elaboration.

Pursuant to the Conveyancing Act 1919 (NSW), s 54A, the contract was required to be in writing. Any variation to a contract which is required by law to be in writing must also be in writing to be effective. This principle is subject to there having been part performance of the contract: see Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 at [74].

In the present case, there was an arrangement between Mr Antonios and Mr Fong that the deposit be paid other than in accordance with cls 2.2 and 2.4 of the contract for sale. The question is whether the means of payment agreed to could nonetheless satisfy Mr Antonios’ contractual obligations to pay the deposit. That question raises the following matters for consideration. First, the relevance of payments having been made to Mr Fong, both in cash and in casino chips, Mr Ayoub and Mr Nassif by way of casino chips and MV Aust by way of electronic funds transfers. Secondly, the relevance of part of the purchase price being paid by way of forgiveness of a loan. Thirdly, whether there was part performance of the contract. Fourthly, even if there was no part performance of the contract, whether MV Developments ‘waived’ the requirement for payment in accordance with cls 2.2 and 2.4.

The first and second of these considerations can be answered shortly. Mr Fong was the sole director of MV Developments and MV Aust. The payments made to Mr Ayoub and Mr Nassif were made in accordance with directions given by Mr Fong. As for the initial advances to Mr Fong, the conversations between Mr Antonios and Mr Fong were premised on any advances Mr Antonios made being related to payment for an apartment in the development. In our opinion, even if, as certainly appeared to be the case, Mr Fong intended to use the advances himself, it was a matter for Mr Fong as between himself, MV Developments and MV Aust to properly account for those moneys and advances.

That does not answer the third and fourth questions. We are again of the opinion that those questions can be answered shortly. Mr Antonios was provided with the keys to the apartment. The only qualification on Mr Antonios being given full use and occupation was that it might be advisable not to move in immediately “while everything is done”. That was advisory only. Mr Fong informed Mr Antonios that he could move in “now” if he wished. Accordingly, the exception to the requirement for a variation to be in writing applies.

That is sufficient to dispose of this issue and, for that reason, it is not necessary to say anything about waiver.

The appeal is dismissed with costs.