Equititrust Ltd & Anor v Franks

(2009) 258 ALR 388; [2009] NSWCA 128

NSW Court of Appeal

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Interrogate

Catchwords

1. Estoppel
2. › Promissory estoppel
3. › Representations by financier
4. › Whether representations that default interest would not be charged
5. › Extent of detrimental reliance
6. › Duration of change of position
7. › Whether reliance ceased when borrower recommenced refinancing efforts
1. Practice and Procedure
2. › Set-off
3. › Set-off at law
4. › Mutual debts
5. › Whether debt owed to joint creditor (not joint and several) can be set-off
6. › Civil Procedure Act 2005 (NSW), s 21
1. Real Property
2. › Joint tenancy
3. › Mortgage debt assigned to two companies
4. › Common law presumption of joint tenancy where statutory presumption of tenancy in common inapplicable to mortgagees
5. › Conveyancing Act 1919 (NSW), ss 24, 25, 26
6. › Property Law Act 1974 (Qld), ss 34, 35
1. Appeal
2. › New points on appeal
3. › Whether point not raised at first instance may be raised on appeal
4. › Whether point of fact or mixed fact and law that could have been met by additional evidence

Quick Take

Where a borrower relies on a financier's assurances not to enforce default provisions, the period of promissory estoppel is limited to the period of actual detrimental reliance — it does not extend beyond the point at which the borrower recommences the conduct it had ceased in reliance on the assurances. A debt owed to a joint creditor (as opposed to a joint and several creditor) cannot be set-off against a claim by the debtor against one of the joint creditors, because the mutuality requirement for set-off under s 21 Civil Procedure Act 2005 is not satisfied. The common law presumption of joint tenancy applies to an assignment of a mortgage debt to two assignees where s 26(2) of the Conveyancing Act 1919 excludes mortgagees from the statutory presumption of tenancy in common.