Balanced Securities Limited v Dumayne Property Group Pty Ltd

(2017) 53 VR 14; [2017] VSCA 61

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Successive agreements relating to same subject matter
4. › Whether second agreement replaced or merely amended first agreement
5. › Entire agreement clause
6. › Objective intention of parties ascertained from terms of later agreement
1. Contract
2. › Construction
3. › Meaning of undefined term
4. › Whether facility agreement fell within meaning of 'mortgage documents'
5. › Interest Commencement Date and Repayment Date governed by 'despatch' of mortgage documents
6. › Mortgage documents not despatched until facility agreement sent to borrower
1. Contract
2. › Construction
3. › Whether first facility agreement had continuing contractual operation after execution of second facility agreement
4. › No continuing operation where second agreement supplanted first
1. Contract
2. › Mortgagee's entitlement to costs
3. › Contractual obligation to pay costs of enforcement
4. › Whether entitlement exists where nothing in fact owed

Quick Take

Practitioners drafting or advising on successive facility agreements should note that where a second agreement covers the same subject matter on different and inconsistent terms and contains an entire agreement clause, it will be held to supplant rather than merely amend the first agreement, with the consequence that the commencement date and other temporal provisions are determined solely by reference to the second agreement.