Boga v 15 Glenburnie Rd Pty Ltd

[2026] NSWCA 23

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Loan agreements
3. › Further advances
4. › Whether payments to third party constituted loans to borrower under loan agreement
5. › Onus of proof
6. › Insufficiency of evidence
1. Evidence
2. › Onus of proof
3. › Civil proceedings
4. › Whether rejection of defendant's positive case assists plaintiff to discharge onus
5. › Whether plaintiff's evidence taken at its highest sufficient to establish claim
1. Contract
2. › Estoppel by convention
3. › Course of dealing
4. › Whether course of dealing established convention that payments fell within loan agreement
5. › Whether custom or convention adopted by parties as basis of relationship
1. Appeal
2. › New points on appeal
3. › Whether appellant permitted to raise new argument not raised below
4. › Coulton v Holcombe principle

Quick Take

Where a plaintiff claims that payments made to a third party constituted loans to a corporate borrower under a loan agreement, the plaintiff must adduce evidence positively linking the payments to the corporate borrower; the fact that a natural person was the alter ego of the corporate borrower does not mean that advances to that person were advances to the company. The rejection of a defendant's positive defence does not relieve the plaintiff of the onus of proving the elements of the claim.