Rose v Manno Kingsway Pty Limited as trustee for the Manno Kingsway Unit Trust

(2025) 116 NSWLR 598; [2025] NSWCA 23

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Intention to create legal relations
4. › Fourth category of Masters v Cameron
5. › Whether emails exchanged prior to formal loan agreement established an intention immediately to be bound
6. › Objective theory of contract
1. Contract
2. › Formation
3. › Consideration
4. › Past consideration
5. › Advance made prior to execution of formal loan agreement
6. › Whether advance and loan agreement formed part of single transaction
7. › Whether chronologically anterior payment constituted past consideration
1. Estoppel
2. › Conventional estoppel
3. › Pre-contractual assumption inconsistent with subsequent written contract
4. › Whether purported concession in cross-examination established mutually manifest conduct
5. › Whether conventional estoppel can be raised where formal written contract entered into on inconsistent terms
1. Estoppel
2. › Promissory estoppel
3. › Requirement of clear and unequivocal promise
4. › Whether extra-contractual promise communicated
5. › Whether evidence of reliance established

Quick Take

Where an advance is made prior to execution of a formal loan agreement, the advance will not constitute 'past consideration' if the advance, execution of the agreement and related steps form part of a single transaction, applying a functional rather than strictly chronological test.