23 October 2012

Subjects: Waiver

A lender sued to enforce a second mortgage and guarantee. The borrower claimed that he was released from both pursuant to a binding oral agreement made over the telephone even though this was inconsistent with a later written agreement.

The issue for the court was whether an oral agreement to release the mortgage and guarantee was made and if so, was intended to have immediate legal effect.

The court found the meeting took place but that no such agreement was made because issues needed to be discussed and terms reduced to writing before being reviewed by lawyers and if some consensus was reached. The further held that even if it the agreement was reached it was not in the nature of a final agreement intended to be legally binding.

The court gave judgment for the lender and granted possession.

Click here to read the full judgment.


LesawebLesa Bransgrove holds a Bachelor of Laws and Bachelor of Commerce from the University of Queensland and a Master of Laws from the University of London. Lesa was admitted as a solicitor of the Queensland Supreme Court in 1996 and the UK Supreme Court in 2002 and as a barrister of the NSW Bar in 2009. After working on the Lehman's litigation Lesa left the bar and joined Bransgroves.

Read more about Lesa Bransgrove