Catchwords

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS - where investor/respondents entered into a loan agreement with the second appellant for the purposes of acquiring units in a limited partnership in an acquaculture investment scheme with purported taxation and self-funding benefits – where venture failed and there was no profit from which to repay the balance of loan monies – whether the true nature of the agreement was for a limited recourse loan or not - whether the learned trial judge erred in finding that the operative agreements determining the terms of the loans were oral agreements of limited recourse loans – whether executed deeds were varied by oral agreement – held the agreement was that consititued by deeds of loan

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSIDERATION – FAILURE OF CONSIDERATION – whether the second appellant/lender performed its obligations pursuant to the loan agreements where the loans made by it involved a round robin of transactions – whether the terms of the loan agreement executed required the second appellant to advance real money by way of loan and apply that money for the acquisition of units in the venture in circumstances where the only source of capital funds for the venture was from the sale of units – DTR Nominees Pty Ltd v Mona Homes Pty Ltd followed - whether provisions within the loan agreement of a promise to pay was sufficient discharge of the investor’s obligations to pay for the acquisition of the units – consideration of the term ‘lend’ – Australian Horticultural Finance Pty Ltd v Jekos Holdings Pty Ltd followed

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RECISSION – LOSS OR WAIVER OF RIGHT TO RESCIND – whether the respondents affirmed the loan agreements after becoming aware that no real money was lent such that they became liable to repay the loan monies in accordance with the agreement – whether the learned trial judge erred in finding that no agreement, affirmation, acquiescence or waiver was made – where the appellants cannot rely on conduct by the respondents to support the appellants’ claim of affirmation of the loan agreement where that conduct essentially relates to obligations pursuant to a partnership deed to which the appellants were not parties – where the conduct of the respondents in keeping the loan agreement on foot despite the continued failure of the second appellant to advance real money did not extinguish the respondents’ right to terminate

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – CREATION OF RELATIONSHIP OF AGENCY – AGENCY CREATED BY OTHER MEANS – IMPLICATION OF AGENCY FROM PARTICULAR CIRCUMSTANCES – where director of second appellant instructed his brother to manage the company – whether the learned trial judge erred in finding the brother was an agent of the second appellant and therefore had authority to offer and execute on behalf of the company guarantees of a limited recourse loan

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – EVIDENCE - whether on an appeal against final judgment it was open to the appellants to challenge the correctness of an interlocutory order – Pioneer Industries Pty Ltd v Baker followed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – EVIDENCE - consideration of the effect and operation of r 227(2) of the UCPR – whether a document disclosed pursuant to the rule may be tendered as evidence against the party making disclosure without the need to otherwise establish its admissiblity