Equuscorp Pty Ltd & Anor v Codd

[2002] QCA 380

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation
3. › Parol evidence rule
4. › Whether executed written agreement constituted complete record of bargain
5. › Whether oral agreement varied or supplemented written loan agreement
6. › Whether extrinsic evidence admissible to establish partly oral and partly written agreement
1. Contract
2. › Formation
3. › Written agreements
4. › Effect of execution of formal written agreement
5. › Whether antecedent oral negotiations superseded by executed deed
1. Contract
2. › Performance
3. › Failure of performance
4. › Meaning of 'lend'
5. › Whether round robin book entries constituted lending of real money
6. › Whether lender performed obligation to advance funds
1. Contract
2. › Discharge, breach and defences
3. › Repudiation and non-performance
4. › Election and affirmation
5. › Whether borrowers affirmed loan agreements after knowledge of lender's non-performance
6. › Whether affirmation of partnership deed constituted affirmation of separate loan agreement
7. › Whether affirmation can create liability where no money advanced

Quick Take

Where a loan agreement requires the lender to advance real money, 'round robin' book entries that create only an audit trail do not constitute performance of the lending obligation, and the lender cannot recover the principal sum. Affirmation of a contract by the innocent party keeps the contract alive for both parties, meaning the defaulting party's obligation to perform continues; affirmation cannot convert a non-existent debt into a liability. The exercise of rights under a separate agreement (such as a partnership deed) to which the lender is not a party cannot constitute affirmation of the loan agreement. Rule 227(2) UCPR dispenses only with proof of relevance and authenticity of disclosed documents, not with other admissibility requirements such as the hearsay rule.