interpretation of inter partes undertaking TRADE AND COMMERCE
Quick Take
1Where infrastructure charges levied under the Planning Act 2016 (Qld) have been paid and 'attach to the premises' under s 119(12)(c), a reasonable business person would understand them as an incident or characteristic of the land analogous to a development approval, and the phrase 'any refunds' in an inter partes undertaking between mortgagee and developer does not, without more, capture a future refund of those charges by council.
2The phrase 'any refunds ... of, or for, the benefit of' a borrower in an undertaking given by a lender does not ordinarily or naturally extend to refunds of monies never paid by the borrower itself but advanced by the lender to a third party under a loan facility at the borrower's direction — to allow the borrower the benefit of such a refund while denying it to the lender lacks commercial sense.
3On the evidence, where the persons who actually decided to accept the undertaking were not called to give evidence and the signatory director testified that he relied on internal stakeholders' advice rather than on anything the counterparty said or failed to say, there was insufficient evidence of reliance to sustain an ACL misleading silence counterclaim — though the court did not need to finally determine the counterclaim.
