Hepburn v McLaughlins Nominee Mortgage Pty Limited
[1997] QCA 37
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- Hepburn v McLaughlins Nominee Mortgage Pty Limited[1997] QCA 37
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Hepburn v McLaughlins Nominee Mortgage Pty Limited[1997] QCA 37
Hepburn v McLaughlins Nominee Mortgage Pty Limited[1997] QCA 37
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4239 of 1996
Brisbane
[Hepburn v McLaughlins Nominee Mortgage P/L]
BETWEEN:
ROBYN LYNNE HEPBURN
(Second Defendant) Appellant
AND:
McLAUGHLINS NOMINEE MORTGAGE PTY LIMITED
ACN 010 668 845
(Plaintiff) Respondent
AEROGALA PTY LIMITED
ACN 067 842 853 (First Defendant)
Davies JA
Thomas J
Fryberg J
Judgment delivered 18 March 1997
Separate concurring reasons for judgment of each member of the Court.
APPEAL DISMISSED WITH COSTS
CATCHWORDS: PROCEDURE - SUMMARY JUDGMENT - QUEENSLAND - Leave to defend - Alleged defence under Contracts Review Act 1980 (NSW).
Contracts - Harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 (NSW) ss. 7, 9, 11 - Unjust contracts - As defence to breach - Knowledge of respondent of matters alleged - Summary judgment when available.
Equity - Undue influence and duress - Presumption from relationship of parties - Husband and wife - Doctrine in Yerkey v Jones (1939) 63 CLR 649.
Counsel: Mr D Campbell for the appellant
Mr A J H Morris QC, with him Mr J Sive for the respondent
Solicitors: Thompson King Connolly as town agents for Verekers for the appellant
McLaughlins for the respondent
Hearing Date: 20 February 1997
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4239 of 1996
Brisbane
Before Davies J.A.
Thomas J.
Fryberg J.
[Hepburn v. McLaughlins Nominee Mortgage P/L]
BETWEEN:
ROBYN LYNNE HEPBURN
(Second Defendant) Appellant
AND:
McLAUGHLINS NOMINEE MORTGAGE PTY. LIMITED
ACN 010 668 845
(Plaintiff) Respondent
AEROGALA PTY LIMITED
ACN 067 842 853
(First Defendant)
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 18 March 1997
I have had the advantage of reading the reasons for judgment of both Thomas and Fryberg JJ. I agree with them that the appeal must be dismissed. The comprehensive statement of facts by Fryberg J. and the detailed reasons given by both of their Honours enable me to express my views for that conclusion in a summary way.
I agree with their Honours that this appeal should be decided on the basis conceded below that the Contracts Review Act 1980 (NSW) applied to the contract of guarantee in the sense that it was governed by the law of New South Wales and that this Court could and should decide whether the appellant satisfied the Court that there was a question in dispute which ought to be tried or that there ought to be for some other reason a trial of the action on the basis that the appellant was entitled to relief under the Contracts Review Act.
The respondent at all times was innocent of any impropriety, if any was involved in obtaining the appellant's signature to the guarantee, and was ignorant of any such impropriety or of any facts from which it could reasonably have been inferred. Moreover a proper inference from the whole of the evidence is that the appellant's conduct was such as to reassure a person in the respondent's position that the transaction was, as it appeared on its face to be, a normal commercial transaction entered into with a business woman of substantial means. There was therefore no arguable basis, in reliance on the Contracts Review Act, for denying to the respondent its rights under the contract of guarantee.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4239 of 1996
Brisbane
Before Davies JA
Thomas J
Fryberg J
[Hepburn v. McLaughlins Nominee Mortgage P/L]
BETWEEN:
ROBYN LYNNE HEPBURN
(Second Defendant) Appellant
AND:
McLAUGHLINS NOMINEE MORTGAGE PTY LTD
ACN 010 668 845
(Plaintiff) Respondent
AEROGALA PTY LIMITED
ACN 067 842 853
(First Defendant)
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 18 March 1997
This is an appeal against the granting of summary judgment for a debt under a guarantee.
The evidence demonstrates that the respondent advanced $445,000 to a company ("Aerogala") in reliance upon a guarantee of the appellant (Ms Hepburn). The appellant sought to show a triable issue under O. 18 r. 1A on the basis that the contract was "unjust in the circumstances relating to the contract at the time it was made" under s. 7 of the Contracts Review Act 1980 (NSW). This plea was based upon affidavits of the appellant alleging that she had signed the guarantee as the result of duress and undue influence on the part of her husband, one Norman Hepburn who is an undischarged bankrupt. The primary facts are fully set out in the reasons of Fryberg J which I have had the opportunity of reading. However having regard to the nature of the proceedings and in particular to the fact that the rules do not envisage that a defendant can or should do more than show that there is a question in dispute which ought to be tried or that there ought for some other reason to be a trial of the claim, I would not draw any adverse inferences against the appellant's failure to present more evidence than she has in relation to the issues that are raised. While some suspicion may be entertained by reason of apparent selectivity of material, I am prepared to approach the matter on the footing that it might be shown that the appellant innocently, under the mental and physical duress of her husband, applied her signature to a series of documents including the guarantee. It is also obviously the case that the respondent had nothing to do with any of the improprieties which the appellant has raised, and had no knowledge of such conduct or reason to suspect it. The respondent did not even know of the existence of Mr Hepburn. There is no evidence suggesting improper or inappropriate conduct on the respondent's part contributing in any way to the acts of which the appellant complains, or that any of the circumstances which she mentions were reasonably foreseeable by the respondent at the time when the contract was made.
It should also be noted that at no stage during the improper activity of Mr Hepburn or others is it suggested that he or anyone else appeared to be acting or purported to act for the respondent.
For reasons stated by Fryberg J I accept that this particular application is to be decided on the footing that New South Wales law applies to the guarantee, and that this Court should act on the footing that it may grant relief under the Contracts Review Act as if it were exercising the jurisdiction of the Supreme Court of New South Wales.
It is convenient to set out relevant parts of ss. 7 and 9 of the Contracts Review Act -
"7. (1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:
- it may decide to refuse to enforce any or all of the provisions of the contract;
- it may make an order declaring the contract void, in whole or in part;
- it may make an order varying, in whole or in part, any provision of the contract;
. . . (etc) . . ."
"9. (1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of:
- compliance with any or all of the provisions of the contract; or
- non-compliance with, or contravention of, any or all of the provisions of the contract.
(2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following:
- whether or not there was any material inequality in bargaining power between the parties to the contract;
- whether or not prior to or at the time the contract was made its provisions were the subject of negotiation;
- whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract;
- whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract;
- whether or not:
(i) any party to the contract (other than a corporation) was not reasonably able to protect his interests; or
(ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he represented,
because of his age or the state of his physical or mental capacity;
- the relative economic circumstances, educational background and literacy of:
(i) the parties to the contract (other than a corporation); and
(ii) any person who represented any of the parties to the contract;
- where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed;
- whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act;
- the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect;
- whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act:
(i) by any other party to the contract;
(ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract; or
(iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract;
- the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party; and
- the commercial or other setting, purpose and effect of the contract.
. . .
(4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made."
For present purposes I take the law to be that stated by the majority (McHugh and Hope JJA) in West v. AGC (Advances) Ltd (1986) 5 NSWLR 610
" A question which arises is whether the court is able to consider circumstances which were not known to the party against whom relief is sought even though the circumstances existed when the contract was made. In my opinion the effect of s. 9(1), 9(2) and 9(4) is that the court may have regard to any circumstance existing at the time of the contract whether or not a party was aware of that circumstance. But the court cannot have regard to any injustice arising from a circumstance that was not reasonably foreseeable at the time when the contract was made. Indeed counsel for AGC conceded that this was so. Nevertheless, while knowledge of a circumstance by the party against whom relief is sought is not a condition precedent to the consideration of that circumstance, his lack of knowledge may render the circumstance of less materiality than it would if he was aware of it." (p. 620)
" If a defendant has not been engaged in conduct depriving the claimant of a real or informed choice to enter into a contract and the terms of the contract are reasonable as between the parties, I do not see how that contract can be considered unjust simply because it was not in the interest of the claimant to make the contract or because she had no independent advice. The late Professor Peden who was largely responsible for the drafting of the Act has said that in accordance with his recommendation:
'. . . the Act does not include the term "unfair" since this might have been interpreted to include situations in which, although the contract favours one party, there has been no abuse of power or unfair conduct on his part': Macquarie University Continuing Education Program, 'Contracts Review Act, 1980 - in practice' at 17.
This passage brings out the important point that, under this Act, a contract will not be unjust as against a party unless the contract or one of its provisions is the product of unfair conduct on his part either in the terms which he has imposed or in the means which he has employed to make the contract." (pp. 621-622)
Kirby P, in dissent, took a wider view of the circumstances in which a contract will be "unjust", and he restated his view that a contract "may be 'unjust' although the other party has acted quite honourable and lawfully" in Baltic Shipping Co v. Dillon (1991) 22 NSWLR 1, 20.
Two steps are involved in granting relief under the Contracts Review Act -
- Determination whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made (s. 9(1));
- If so, whether it is just to grant relief in respect of the contract or provision that is found to be unjust (s. 7(1)).
Application of the concept of "injustice" is involved at both stages. Differing views have been expressed in a series of cases in New South Wales as to whether innocence or non-involvement of the respondent in the matters that disadvantage the applicant is relevant in the determination of the first question. The approach of Kirby P, and it would seem of Sheller JA in Nguyen v. Taylor (1992) 27 NSWLR 48 in answering that question is to focus attention on the contract, and perhaps upon its impact upon the party who seeks to avoid liability under it, rather than upon the contribution and responsibility, or lack of contribution and responsibility of the respondent. I do not propose to attempt to resolve the conflict here. It is unnecessary to do so as there seems to be substantial agreement in the cases as to the relevance of the "innocence" of a respondent in answering the second question (Nguyen v. Taylor (1992) 27 NSWLR 48).
Twelve of the factors to which the Court is to have regard in determining whether a contract is unjust are set out in subparagraphs (a) to (l) of s. 9(2). These are to be examined and taken into account to the extent that they are relevant one by one. They are inclusionary factors. Beyond them, further factors may exist that tend to show whether a contract is just or unjust. If the Court finds a contract to have been "unjust" under s. 9(1) the further question arises under s. 7(1) whether it is "just" to grant relief. In West (above) McHugh JA has stated, consistently with s. 9(4) of the Act, that the Court cannot have regard to any injustice arising from a circumstance that was not reasonably foreseeable when the contract was made. No additional factor beyond the specific factors stated in s. 9(2) emerged in evidence or argument to support the conclusion that it would be just to refuse to enforce the contract, or to grant any other form of relief under s. 7.
What then were the circumstances that could be said to cause this contract to be "unjust in the circumstances" under s. 9(1)? Shortly stated they are the physical and mental duress of the appellant's bankrupt husband, the apparent false pretences that were made to the respondent which induced it to enter into the transaction (namely the advance of $445,000 supported by the appellant's guarantee) leading in turn to the appellant's obligation for which she is now sued, and also, it may be inferred on the material as a whole, additional unspecified acts of fraud and false pretences by the appellant's husband or by persons or entities with whom he was associated. The circumstances are more fully stated at p. 18 of Fryberg J's reasons, but the essence of the case lies in what I have here stated.
It is to be noted that s. 9(2)(j) is of no assistance to the appellant in the present case, because neither her husband nor any other relevant person at any stage purported to be acting for the respondent. Nor by any stretch of the imagination could it be said that he or any other person who exerted influence on the appellant appeared to be acting for the respondent. The particular circumstance prescribed in s. 9(2)(j) which permits a Court to take undue influence, unfair pressure or unfair tactics exerted under those circumstances into account even though the respondent was innocent of any involvement in the conduct, is not made out in this particular case.
In Nguyen v. Taylor (above), the applicant had been misled by his own agent, and the other contracting party was completely innocent of misrepresentation or misconduct. All three members of the Court (Kirby P, Meagher and Sheller JJA) considered it appropriate to decline relief in such circumstances. Sheller JA observed
"However when coming to determine how the discretion should be exercised, the Court, in my opinion, is entitled to have regard to additional circumstances and importantly for the purposes of the present case the ignorance and innocence of the appellants (cf. Antonovic v. Volker (at 157G) in the context that it was the respondent's agent who misled him."
Meagher JA said
"The present respondent had been misled by his agent who had informed him that he could at any time 'get out of' his bargain if he chose to do so, although there is no suggestion that either of the appellants were party to, or had knowledge of, this misrepresentation . . . I can see no reason in those circumstances why an innocent purchaser should be deprived of his bargain."
Kirby P observed
"The appellants have acted honourably and lawfully. In the circumstances, I do not consider that it would be just to shift the burden of this unjust contract onto the appellants."
Of course that decision is not decisive in proceedings of the present kind, where one needs to be satisfied that the circumstances could not reasonably justify an exercise of discretion in favour of the appellant. The case is however of some relevance in indicating the difficulty to granting relief in such cases. In the present matter the material nor the argument suggests any additional factors that might reasonably emerge that could arguably lead to a different result.
In the end then, it does not matter whether the relevant circumstances lead to the conclusion that the discretion to grant relief could not properly be exercised against the respondent, or to the conclusion that it could not be found that the contract was in the circumstances unjust. The former conclusion is enough to displace the defence.
It is true that a wide ranging enquiry is contemplated when relief is sought under the Contracts Review Act and that considerable difficulty would normally be expected in relation to the obtaining of summary judgment once such relief is sought. However in the circumstances of the present case, the material presented is not reasonably capable of leading to the grant of relief under the Act.
The appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4239 of 1996
Brisbane
Before Davies JA
Thomas J
Fryberg J
[Hepburn v McLaughlins Nominee Mortgage P/L]
BETWEEN:
ROBYN LYNNE HEPBURN
(Second Defendant) Appellant
AND:
McLAUGHLINS NOMINEE MORTGAGE PTY LIMITED
ACN 010 668 845
(Plaintiff) Respondent
AEROGALA PTY LIMITED
ACN 067 842 853 (First Defendant)
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 18 March, 1997
Introduction
By a specially indorsed writ issued on 24 January 1996, the respondent sued Aerogala Pty Ltd ("Aerogala") and the appellant for over half a million dollars. It claimed that the money was due by way of repayment of a loan which it made to Aerogala and which was guaranteed by the appellant. On 15 March 1996 the appellant entered an appearance in the action,[1] and on 2 April 1996 she commenced proceedings by statement of claim in the Supreme Court of New South Wales against the respondent and three other persons, claiming against the respondent an order that the guarantee be set aside. It does not appear when that statement of claim was served, but on 3 April, the respondent filed a summons in this action seeking summary judgment against the appellant. That summons was returnable on 24 April.
On the day before the hearing, the appellant filed (and presumably served) an affidavit in response. She also filed a summons seeking an order that the action be transferred to the Supreme Court of New South Wales and that that court apply the written and unwritten law of New South Wales to the determination of the action. At the hearing, the learned chamber judge gave judgment against the appellant, and dismissed her application. This appeal is brought from those orders.
The facts
The facts, which are undisputed, may be gleaned from the three affidavits which were before the judge. On or about 13 December 1994 the appellant (who was then living with her husband at Bayview Heights, New South Wales) was asked by her husband if she would sign some papers for the purchase of a property at Ashfield for the purpose of running two businesses. She knew that as a bankrupt he had had trouble in trying to obtain finance to purchase these properties. The appellant refused to sign the papers. She deposed that immediately after she did so, her husband flew into a rage. He was a large man and he forced her up against a divider, from which he would not let her move for over four hours. Throughout that time he swore at her and abused her and she was afraid, she deposed, that he would hit her. When she tried to get away he restrained her and prevented her from doing so. He repeatedly demanded that she agree to sign the documents. She deposed that after four to four and a half hours of this she was exhausted, unable to think clearly and unable to concentrate. She eventually agreed that she would sign the documents, but only on the condition that it was for a short time until he could find someone to take her place. She demanded that he provide her with a letter that the loan would be re‑financed, and he agreed to do so. He then let her go. The following day, she deposed, she left the family home and moved in with a girlfriend. She had no money and was not working and had already applied for social security.
Sometime after these events (she did not say when), her husband handed her a document. That document was headed "Undertaking" and read as follows:
"This agreement is dated this day the Twelth [sic] day of December, 1994.
I, Norman Winston Hepburn, hereby irrevocably undertake to Robyn Lynne Hepburn, that all mortgages, agreements and liabilities entered into by the said Robyn Lynne Hepburn, for or on my behalf from this day, that such debt or liability thereby accruing will be removed from her name in totality by either being refinanced or extinguished no later than the close of business on the Twenty Eighth day of February, 1995."
That document purports to be signed by Norman W Hepburn and witnessed by the appellant. She gave no explanation in her affidavit of how she came to witness it. The original of the document is said to be "held by Ronald J Curry and Co.", but there is no explanation of who that is, nor why that firm should be holding the original.
The appellant also deposed that a few days later, her husband handed her a letter on the letterhead of a company called "Finance & Mortgage Corporation Limited", dated 23 December 1994, addressed to her and signed by one Neil Allan Macdonald. That letter was in these terms:
" LETTER OF UNDERTAKING
This agreement is dated this day, the 23rd Day of December 1994.
I, Neil Allan Macdonald, of Finance & Mortgage Corporation Limited, Suite 903, Level 9, 275 Alfred Street, North Sydney in the State of New South Wales, do hereby give this undertaking to Robyn Lynne Hepburn, subject to normal commercial rules for the borrowing of money, that all mortgages, agreements and liabilities entered into by the said Robyn Lynne Hepburn, from this day, for and on behalf of Norman Winston Hepburn, and all debt or liability thereby accruing to the said Robyn Lynne Hepburn will be removed from her name in totality by those loans being either re‑financed or negotiations with the lenders, that the guarantees of Robyn Lynne Hepburn be extinguished, and that such will take place no later than the close of business on the Twenty Eighth day of February, 1995."
The original of that letter was also said to be held by Ronald J Curry and Co.
The appellant deposed that she had no further involvement with the matter until shortly after 5 February 1995.
The respondent is apparently a company operated by a firm of solicitors on the Gold Coast which lends money (presumably for the firm's clients) on the security of mortgages. All of its dealings relevant to this case were conducted on its behalf by its solicitors. On or about 23 January 1995, a finance broker on the Gold Coast called Moneycorp Pty Ltd circulated a loan application purporting to be on behalf of a new company being formed, of which it was said the appellant was the director. The solicitors were sent a copy. The application named the accountants and solicitors for the company (the latter were identified as "Pappas, J. Solicitors .... Contact: Leigh Derwin"). The amount required was $445,000, to assist the applicant to purchase property at Ashfield, New South Wales, said to be valued at $680,000. There was said to be a valuation of the property in that amount. The application asserted that the appellant had an annual gross income of $175,000 and that she had owned and operated a real estate consultancy firm for over 15 years, specialising in real estate on the northern beaches. It asserted that over the years she had acquired several investment properties and now wished to broaden her investment base to acquire the Ashfield property. With the application was a copy of the unsigned first page of a standard form of contract for the purchase of the Ashfield land showing the appellant or nominee as purchaser and her solicitor as "Leigh Derwin". Also attached was a copy of the appellant's notice of assessment for income tax issued on 5 October 1993, disclosing a taxable income of approximately $119,000 approximately.
On 3 February 1995, the solicitors for the respondent wrote to the appellant care of Moneycorp advising that the respondent had conditionally approved her request.[2] That letter sought a number of documents from the appellant, including the original valuation, certified searches of the land, the purchase contract, and the memorandum and articles of any corporate borrower. A document setting out the principal terms and conditions being offered was enclosed. That document described the appellant as the borrower, and it had annexed to it a form for signature entitled "Acceptance Form".
On 9 February 1995, the respondent received a facsimile letter from Finance Mortgage Corporation [sic]. The letter was signed by Neil A Macdonald on behalf of that company. It read:
" Re: Hepburn - Purchase at Ashfield
Attached herewith acceptance of loan offer.
Original and cheque on account of fees to be forwarded by mail."
The acceptance form was attached. It was dated 8 February 1995 in the appellant's handwriting and was signed by her.
On 14 February 1995, the solicitors for the respondent received a facsimile message from Leigh Derwin, of "pappas, j. - attorney". That facsimile letter confirmed a conversation the previous day in which the lender's solicitors were advised that the purchaser company was to be Aerogala; that it should be the borrower; and that its performance should be guaranteed by the appellant. The writer invited submission of mortgage documentation. The same day, the respondent's solicitors forwarded to "J Pappas Solicitor" a number of documents including a deed of loan to Aerogala, a bill of mortgage and a guarantee and indemnity. The letter concluded:
"This letter is not, and is not to be construed as a binding contract by the Lender to make the advance. Such contract shall only come into existence upon the making of the advance."
The agreement for loan enclosed with that letter has two features of interest. First, it provided that the lender should advance the loan "on the advance date". The term "advance date" was defined to mean "the date on which such advance is made". It was, in other words, a circular definition. Second, the agreement expressly provided that it should be governed by and construed in accordance with the law of Queensland. The agreement contained conditions precedent requiring that the appellant should execute a guarantee and that the borrower should grant a mortgage over the Ashfield land. There was no choice of law provision in the guarantee.
The loan agreement, the bill of mortgage and the guarantee (among other documents) were returned to the solicitors for the respondent by "pappas, j. ‑ attorney" under cover of a letter dated 21 February 1995. The loan agreement then bore the date 21 February 1995 (on the cover sheet) and bore the seal of Aerogala. Against the seal it was signed by the appellant and her son as director and director/secretary respectively. Immediately after that execution block it was again signed by the appellant against a signature block reading "signed and acknowledged ... as guarantor" and this signature was witnessed by Alexander J Law, a solicitor of Sydney. The mortgage was similarly executed by Aerogala and was also dated 21 February 1995.
The guarantee too was signed by the appellant. It is desirable to describe the guarantee in a little detail. The document comprised a cover sheet and five pages. Provision was made to date the document both on the cover sheet and at the head of the text. Immediately below the latter provision appeared the names of the parties to the deed in bold type and block letters, using the text, "BETWEEN: ROBYN LYNNE HEPBURN ... IN FAVOUR OF: McLAUGHLINS NOMINEE MORTGAGE PTY LTD". The execution block appeared on page 4 and declared the document "signed sealed and delivered" by the appellant. It was however blank. The fifth page of the guarantee as printed comprised a schedule and a "certificate by independent solicitor". The schedule specified only the name of the borrower and the principal sum. The certificate was in these terms:
" CERTIFICATE OF INDEPENDENT SOLICITOR
Before the guarantee was executed by the Guarantor I explained the contents, nature and effect of them to the Guarantor. In particular I explained and advised on the consequences of default by the Borrower under the relevant Security Documents, including the Lenders right to sue them and recover from the Guarantor all the monies due to it including but not limited to the principal advance, all outstanding interest and all costs. The Guarantor appeared to be aware of and to understand the terms, nature and effect of the Guarantee and the obligations under the Guarantee.
I am a legal practitioner instructed and employed independently of the Borrower."
It was signed by Alexander J Law as solicitor for the guarantor, and Mr Law's firm name was given as "A J Law and Co. DX 920-Sydney". In the same hand-writing it was dated 20 February 1995.
Between the schedule and the certificate, someone has hand-written the words "Signed sealed and delivered Robyn Lynne Hepburn in the presence of:" in the format of a signature block. The appellant has signed the document to the right of those words and Alexander J Law has signed beneath them. The appellant has signed the first three pages of the text of the guarantee at the foot of each page, but has nowhere signed the fourth page. The evidence does not disclose whether that documentation was returned to the solicitors for the lender by courier as they requested, or by post.
Presumably the solicitors for the lender were or became satisfied with the documentation, for Mr Holt, a partner in the firm, deposed that the respondent lent Aerogala the sum of $445,000 on or about 8 March 1996. Plainly that is a misprint for 8 March 1995. There is no evidence of where the advance was made, but it must be at least an available inference that this occurred in Sydney on settlement of the purchase of the land.
Because of the nature of the present proceedings, there has been no evidence of what inquiries, if any, the respondent made to obtain information about the appellant or the property being purchased. In particular, it does not appear whether the respondent contacted the accountants named in the application for finance, whether it obtained the copy of the valuation therein referred to, whether it sought a more up‑to‑date verification of the financial position of the appellant than was to be found in the income tax assessment or whether it conducted a search of Aerogala at the Australian Securities Commission. However, the material before us does show that had it conducted such a search, it would have found that Aerogala was a shelf company which had no apparent connection with the appellant. It was registered in New South Wales on 18 January 1995 and its first annual return was not due until 31 January 1996. The material does not show the identity of shareholders nor the identity of its original directors. On 15 February 1995 a notice of retirement of at least one director was lodged with the Commission, effective 14 February 1995. The terms of that document are not before us. A further notification was lodged with the Commission on 14 November 1995. That was a notification of change to office holders and advised the Commission that Eric Hewitt Dick and Norma Amy Dick had ceased to hold office as directors and that the appellant and her son had been appointed as director and director/secretary respectively. Those changes were said to be effective on 14 February 1995. That document was dated 8 November 1995 and purported to be signed by the appellant. However, the signature is plainly different from all of the other examples of the appellant's signature in the material and she has sworn that it is not her signature. She has deposed that she has never consented to be a director of the company and that she was unaware that she had been "appointed" as a director.
According to the appellant, she first became aware of the existence of Aerogala in January 1996, when she received a letter of demand from the solicitors for the respondent. That letter asserted that Aerogala owed the respondent the whole of the loan moneys and interest. It made demand for the immediate payment of over $514,000 under the guarantee. Aerogala had not paid any of the monthly instalments of interest due to the respondent after 1 May 1995. Inferentially, the respondent had exercised a right to accelerate repayment of principal. Surprisingly, receipt of that letter did not cause the appellant to consult a solicitor immediately. However, she did so promptly upon being served with the writ on 25 February 1996. As a result of his advice, she commenced the proceedings in the Supreme Court of New South Wales referred to above.
The appellant conceded that with the exception of the notification to the Australian Securities Commission, all the documents before us purporting to be signed by her were in fact signed by her. Her explanation for this was that "shortly after 5 February 1995", when she was living with her son, Scott,[3] her husband told her that he had arranged for her to see a solicitor about signing the papers for Ashfield. At that time, it was her understanding that she was to be responsible for the loan that her husband had arranged until the end of February. She agreed to go with him, although she was not happy about the arrangement. She believes that he took her to see Alexander J Law. She thought she was going to sign a mortgage; of what, she does not say. Her husband gave the solicitor some documents. The solicitor asked her if she knew she was there to sign a mortgage and asked her if she knew what it was for. He then placed the documents in front of her and she signed them according to his direction at the places nominated by him. She swore that at no stage was she given an opportunity to read the documents, though she did not suggest that she would have done so if such an opportunity had been available. When she signed them, they bore neither the seal of Aerogala nor the signature of her son. When she signed the loan agreement she did not notice the word "Director" beneath the dotted line on which she signed, nor the name of Aerogala immediately to the left of that dotted line. In the guarantee she did not observe the information in the schedule immediately above her signature nor did she see the front of the document listing her name as guarantor or the title of the document as "Deed of Guarantee and Indemnity". She did not depose to the fate of the documents after she signed them. She did not suggest in her affidavit that on the day she signed the documents she was acting under any fear of physical injury or other form of duress.
It will be observed that her explanation accounts for her signature on the formal documents, but does not account for her signature on the original acceptance form, which plainly could not have been signed on the same day as the other documents.
The New South Wales proceedings which the appellant commenced were brought against the respondent as first defendant, Neil Allan Macdonald as second defendant, Finance & Mortgage Corporation Limited as third defendant and Alexander J Law as fourth defendant. Her husband was not made a defendant. Against the second and third defendants she claimed misleading and deceptive conduct under the Fair Trading Act by virtue of the letter of 23 December 1994. Against the fourth defendant she alleged negligence in advising her in relation to the execution of the documents. Against the first defendant (the present respondent) she claimed an order that the guarantee be set aside. For this she relied on the Contracts Review Act 1980 (NSW) ("the CRA"). Alternatively she alleged that her husband was the agent of the first defendant in procuring the execution of the documents and further (and perhaps alternatively) that she executed them without proper advice and by reason of his undue influence. Finally, she alleged that in seeking to enforce the guarantee, the first defendant was guilty of unconscionable conduct. Whether this statement of claim had been served on anyone by the time of the hearing on 24 April 1996 does not appear.
It was common ground both below and on appeal, that on the evidence, the respondent knew nothing of the foregoing events at any material time. Indeed, no one on behalf of the respondent had any knowledge even of the existence of the appellant's husband.
The proceedings below
Before the chamber judge, the appellant resisted judgment on two grounds. First, she argued that she was under duress at the time of entering into the contract. Second, she argued that the contract was reviewable under the CRA. As to the former argument, his Honour observed that there was nothing in the material to connect the appellant's husband to the respondent. On this basis, he rejected that argument. Before us, it was not argued that the guarantee was void or voidable at common law by reason of duress.
As to the second argument, his Honour observed that it was not in dispute that the legislation (the CRA) was applicable to the "transaction" before him, at least for the purposes of the application. We were informed by Mr Morris QC (who did not appear for the respondent below) that inquiries had disclosed that his predecessor had conceded that for the purposes of the summary judgment application, the matter should be argued on the basis that the CRA applied, in the sense that the contract was governed by the law of New South Wales. Doubtless that explains why his Honour did not consider that question. His Honour considered the Act, and in particular s. 9(2)(j)[4] and held that in the circumstances of the case, the requirements of that provision were not satisfied as the appellant's husband was not a person who satisfied the requirements of that paragraph. Rejecting both arguments advanced for the appellant, he gave judgment against her.
His Honour also dismissed the summons to transfer the proceedings to the Supreme Court of New South Wales, without giving any reasons for this course. It seems obvious that he took this action in consequence of the judgment which he had just given. By reason of the judgment there was nothing left to transfer to New South Wales, or at least, nothing was left which was worth transferring. His Honour did not consider what action he would have taken in relation to the appellant's summons for transfer had he given leave to defend.
General principles
Under the Rules of the Supreme Court, a plaintiff may apply for judgment in the circumstances set out in O. 18 r. 1. That is what happened in the present case. Thereupon, a judge dealing with the matter is entitled (or perhaps obliged) to give judgment "unless the defendant satisfies the Judge with respect to the claim ... to which the application relates that there is a question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim". Under r. 3, the defendant may show cause against such an application by affidavit, or by leave of the judge by oral evidence, or otherwise to the satisfaction of the judge. In the present case, the appellant sought to show by affidavit that there was a question in dispute which ought to be tried.
In relation to such applications, some propositions are well settled:
- The power to order summary judgment should not be exercised unless it is clear that there is no real question to be tried;[5]
- The conclusion that there is no real question to be tried must be clear on the whole of the evidence before the court - it is not necessary that it be drawn solely from affidavits filed or read by the defendant;[6]
- It is not necessary for a defendant at the stage when summary judgment is sought to show a complete defence;[7]
- A defendant who seeks to show cause under O. 18 r. 3 must "condescend upon particulars";[8]
- This requirement means that the defendant must satisfy the judge that there is reasonable ground for saying that the debt is not due and owing, and must satisfy the judge that there are facts which make it reasonable that the defendant be allowed to raise the defence relied upon;[9]
- In assessing the evidence on the application, inferences may be drawn as well from what is not said by either party as from what is said.[10]
The main argument
The primary argument advanced on behalf of the appellant by Mr Campbell[11] was that judgment should not have been entered because the appellant showed an arguable case for relief under the CRA. It was not argued that the chamber judge should have withheld judgment for reasons of comity with the Supreme Court of New South Wales, nor because the proceedings in New South Wales might result in the avoidance of the contract by that court. Quite the reverse; Mr Campbell argued that the New South Wales proceedings were likely to be met with a plea of res judicata or issue estoppel by reason of the judgment. He argued was that it was open to this court to grant relief under that Act, and that this was a case where relief might, at least arguably, be granted. No reliance was placed upon the doctrine of forum non conveniens. For the respondent, Mr Morris expressly conceded that the jurisdiction which this court may exercise pursuant to s. 9 of the Jurisdiction of Courts (Cross‑vesting) Act 1987 included the jurisdiction conferred upon the Supreme Court of New South Wales by the CRA. In the absence of any argument to the contrary, the court should accept that concession, but the point should not be taken as decided.
It should also be noted that at the time judgment was entered, the appellant had not in fact made any application to this Court pursuant to s. 11 of the CRA. That section provides that application may be made "in accordance with rules of court" in proceedings in relation to the contract. The present proceedings have been conducted on the basis that the appellant was entitled to resist judgment by foreshadowing an intention to begin proceedings, presumably by counter-claim, in due course. No reliance was placed upon the fact that the application was yet to be made, nor was it argued that future relief available only by way of counterclaim could only ground a stay of judgment, not operate as a bar to it.
The proper law of the guarantee: the respondent's concession
Before us, the respondent refused to make the concession which it made before the chamber judge, and submitted that the proper law of the contract was that of Queensland. It was not open to the respondent to make that submission in this appeal. The question of what was the proper law of the contract depended upon a number of matters of fact. On several points, there was no evidence in the affidavits.[12] It is quite conceivable that the chamber judge could have allowed an adjournment to enable further evidence on this topic to be adduced. Much of the important evidence advanced by the respondent was contained in an affidavit sworn on the day of the hearing. It is not incumbent on the appellant to show that it would have sought to adduce such further evidence, much less that it would have been allowed to. It is sufficient that it might have done so:
"More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied."[13]
It is a fortiori when the point is one which was the subject of an express concession below.
The onus of proof
In support of his submission that summary judgment ought not to have been entered because the appellant had raised a defence under the CRA, Mr Campbell cited Commercial Banking Co of Sydney Ltd v Pollard.[14] There, Rogers J held that it was inappropriate that a defence "of the kind here under consideration" should be dealt with on an application for summary judgment.[15] Mr Campbell also referred the court to Permanent Trustee Australia Ltd v Biviano.[16] In that case, after referring to the dictum of Rogers J, Sperling J said:
". . . That, however, has not been the attitude of the Court in later judgments. In Cogo v Permanent Custodians (Cohen J, 23 September 1992, unreported) and in National Australia Bank Ltd v Winskill (Wood J, 21 June, 1994, unreported), for example, applications for summary judgment were entertained (although, in both cases, the applications failed).
I would not hold that a defence and/or cross-claim in reliance upon the Contracts Review Act is a special case, precluding an application for summary judgment by the Plaintiff. The ordinary principles relating to an application for summary judgment apply, but the nature of the issues arising under the Contracts Review Act are such that it will be a rare case in which such an application will succeed."
Mr Campbell assured us that his research had not disclosed a single instance where summary judgment had been granted in a case where a defence under the CRA had been raised.
The rules of court which were under consideration by Sperling J in Permanent Trustee Australia Ltd v Biviano were not the same as those in O. 18 of the Rules of the Supreme Court of Queensland. Whatever may be the position in New South Wales, it cannot be said in this state that an application for summary judgment can only succeed in a rare case when there is a defence raising issues of the nature of those raised by a defence under the CRA. The view expressed by Sperling J reflected his Honour's opinion that a party seeking summary judgment under the New South Wales rules bears the onus of satisfying the court that there is no triable issue. His Honour said:
"Under this rule, the party seeking judgment bears the onus of satisfying the court that there is no triable issue: Singh v Varinder Kaur (1985) 61 ALR 720. Accordingly, the respondent to the application does not have to establish a defence affirmatively. When a defence is pleaded, it is for the plaintiff who moves for summary judgment to show that the defence cannot be made out."
In Singh v Varinder Kaur, Samuels JA (with whom Kirby P and Glass JA agreed) said:
" The High Court, which has recently examined the relevant principles in Fancourt v Mercantile Credits Ltd (1983) 48 ALR 1 at 10, put the matter in this way: 'The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.' There follows a reference to prior authority, and then: 'In our view, it is not possible to say without doubt on the whole of the material that there is no question to be tried concerning the payment of the deposits by the appellants.'
That language suggests to me that the burden lies on the plaintiff seeking summary judgment of persuading the tribunal that there is no real question to be tried. It is not consistent with the reverse proposition - that the defendant resisting judgment must show that there is a real question to be tried. This is so, notwithstanding that in Fancourt under the Queensland rules (O 18, r 1) a plaintiff is entitled to summary judgment unless the defendant satisfies the judge that there is a question or dispute which ought to be tried. I might add that the High Court in Fancourt referred to this provision in the course of the joint judgment on p 6 but not thereafter, and there was no reference to the particular Queensland rule in the context of the statement of principle which I have just quoted."[17]
With respect, I cannot agree with this interpretation of the discussion of the topic by the High Court in Fancourt. The High Court was not concerned with questions of onus of proof in the passage quoted. Its point was that judgment could be given only if it was clear that there was no real question to be tried on the whole of the evidence, not just on the evidence adduced by the defendant. The court was addressing the position which arises after all of the evidence is in, and the judge is determining his or her decision. It was not addressing the question whether the plaintiff was obliged to persuade the court that there was no real question to be tried or whether the defendant was obliged to show that there was a real question to be tried. Fancourt was an unusual case in that the defendants appear to have succeeded only on the basis of inferences in their favour drawn from the plaintiff's affidavits in reply. But for those inferences, the court observed, "there may have been a real question whether they should have been given leave to defend."[18] The Court was not concerned with the position which would arise in the (unlikely) event that the judge could not make up his mind whether or not the evidence showed a real question to be tried. On the contrary: it positively found that there was a question to be tried, a question left for trial by the failure of the respondent to establish conclusively the payment of the deposits when it was in a position and had the opportunity to do so.
That interpretation of O. 18 is supported not only by the language of rr. 1 and 3, but also by practical considerations. The onus of showing either the existence of a question in dispute which ought to be tried or that there ought for some other reason to be a trial is not a heavy one. If all that a defendant need show to avoid judgment were the mere possibility of the existence of such a question or the mere possibility that there might exist some other reason for a trial, the utility of the summary judgment rules would be greatly diminished. Moreover, bearing the onus places a defendant at no procedural disadvantage. A failure by the plaintiff to lead evidence of matters within its knowledge may, as Fancourt shows, give rise to a triable issue. There will also be cases where, even in the absence of demonstration of questions in dispute which ought to be tried, the court nonetheless forms the view that for some other reason there ought to be a trial.[19] There is no reason why the second limb of the rule should be given a narrow meaning. Together, both limbs afford defendants adequate scope to protect their position.
The Contracts Review Act 1980
Determining an application under the CRA involves a court in two steps.[20] First, it must decide whether the contract in question (or a provision of it) was unjust in the circumstances relating to the contract at the time it was made.[21] Then, if it does so find, it must decide whether it considers it just to make an order for the purpose and of the type described in the Act.[22] At both stages, injustice is a statutory criterion. Samuels JA (with whom Kirby P agreed) has described "unjust" as "a slippery word of uncertain content".[23] It cries out for particulars. Moreover, s. 9 of the CRA requires regard to be had not only to the public interest but also "to all the circumstances of the case". As Kirby P has observed, "[T]he very generality of the phrase tends to attract the demand for specificity and particularisation, in order to focus the relevant inquiry."[24] This is no less true at the stage of an application for summary judgment. Showing cause under O. 18 by reference to the CRA involves more than exhortation by epithets.
Some features of s. 9 should be noted. First, knowledge of the various matters set out in s. 9(2) on the part of the respondent is not essential for a finding that the contract was unjust in the circumstances relating to it at the time it was made.[25] Lack of such knowledge may however render a particular circumstance of less materiality than it would be if such knowledge existed.[26] That is however subject to any provisions in s. 9 expressly or implicitly requiring knowledge. In that regard, s. 9(2)(j) would seem to require knowledge on the part of a person or his actual or purported or apparent agent. Finally, it does not seem that s. 9(4) is applicable to facts in existence at the time of the contract. Rather, that provision seems to relate to matters occurring or failing to occur subsequently.
It was argued for the appellant that the form of the contract and the fact that it was a guarantee executed in New South Wales to the knowledge of the lender made it incumbent upon the lender to ensure that the proposed guarantor was not being placed in an unjust position. That argument seemed to echo opinions expressed by Kirby P in Gough v Commonwealth Bank of Australia.[27] His Honour's reasons for judgment in that case, explicitly recognised the policy considerations relating to women in vulnerable positions which lay behind those reasons. However His Honour's approach did not find favour with a majority in that case, and countervailing policy considerations were referred to by Mahoney JA. He was of the opinion that the application of the Act to women in vulnerable positions should be considered on a case by case basis. There is currently no binding authority in New South Wales to support a general interpretation of the sort described in the appellant's submission. It is plainly inappropriate for this court to propound a new interpretation of the CRA in an area where policy considerations are of central importance. The CRA is a New South Wales act and such issues are best addressed by the Supreme Court of that State.
To establish the relevance of disputed questions which ought to be tried, the argument for the appellant relied upon the general terms of s. 9(1) and the particular provisions of para. (b), (c), (h), (i) and (j) of s. 9(2). It was argued that the guarantee constituted a contract which conferred no benefit whatsoever on the appellant. Her commitment to it was, it was submitted, procured by classic undue influence on the part of her husband. The appellant was in poor economic circumstances at the relevant time. There were no negotiations between her and the respondent prior to the contract, and therefore no opportunity for her to negotiate any alteration of, or reject any provisions of, the contract. She received practically no expert advice about the contract and what she did receive was not from an independent person. The provisions of the contract were not explained to her and she had no opportunity to read the documents. The lender made no attempt to make inquiries which would have revealed these facts. For all these reasons, it was submitted, the guarantee was unjust in the circumstances relating to it at the time it was made; or there were at least real questions to be tried on this issue.
It may be doubted that the evidence, which is set out in some detail at the beginning of this judgment, is sufficient to support these submissions, even taking into account reasonable inferences from facts the subject of direct testimony. It is worth noting that while the appellant deposed that she agreed to sign documents for her husband under duress, she did not depose that the duress was still effective when she signed them, two months later and after she had left her husband's home. Moreover, she signed the documents only eight days before she says her responsibility for her husband's borrowings was to end. She did not explain this fact, nor did she explain what she thought she was mortgaging, though she admitted she knew the nature of a mortgage and understood she was to be responsible for the loan until 28 February. There is no explanation at all of how she came to sign the application for the loan. She asserted that she is in impecunious circumstances but did not explain how, having regard to her previous year's tax assessment. She did not deny the description of her career contained in the application for finance by Moneycorp.
It is unnecessary to detail these discrepancies further. It is not appropriate to analyse the evidence with too fine a toothcomb on such an application as this. For the purposes of this appeal, it may be assumed without being decided, that she has shown enough to establish disputed questions which ought to be tried in relation to the issues arising under s. 9.
There is no doubt that ignorance on the part of the person against whom the applicant seeks relief of the circumstances giving rise to the injustice is a consideration relevant to the exercise of the discretion under s. 7 to grant such relief.[28] Mr Campbell rightly conceded that this was so. In Collier v Morlend Finance Corp (Victoria) Pty Ltd, Meagher JA (with whom Hope and Clarke JJA agreed) said:
"... there is some authority, though only by way of dicta, that a lender's ignorance of any vitiating factor does not preclude the court from making an order: see St Clair v Petricevic (1988) ASC ¶ 55-688. None the less, the circumstances would be rare indeed when a court should, in the exercise of its duty to make a just order, deprive an innocent party of the benefit of its contract, particularly when, as here, the party seeking to have the transaction set aside does not offer terms."[29]
It must be remembered in this context that the question in the present proceedings is whether there is a question to be tried as to the exercise of the discretion in favour of the appellant.
It is at this point that the appellant's argument must fail. On the uncontradicted evidence, the respondent was entirely an innocent party, and nothing in the evidence suggested any chance of a different conclusion at a trial. The appellant admitted that she allowed her husband to set up a loan using her name when she knew he was bankrupt, and that she signed documents which she must have known a lender would rely on. She did not allege that she did so under any imminent duress. She had the opportunity to ask for advice from a solicitor who was independent of both the lender and Aerogala, but sought no such advice. On the contrary, she signed a certificate falsely asserting that she had received such advice without even reading it.[30] She did not suggest she was incapable of reading and understanding a guarantee, or at least of asking about it; she gave no history of her background and education; and in particular did not deny the background set out in the Moneycorp application. She admitted that she understood the nature of a mortgage and that she was to be responsible for the loan to 28 February 1995. Her attitude simply was that the whole of any loss must fall on the innocent lender. Nothing in the evidence nor arising by way of inference from it suggests that there is any prospect that the appellant would be able to enliven the discretion under s. 7. It follows that on this aspect of the case, the appeal must fail.
Other matters
Although the appellant's outline of argument referred to duress and undue influence, Mr Campbell conceded that the appellant could not rely upon the principles enunciated by the High Court in Commercial Bank of Australia Ltd v Amadio.[31] He argued that duress and undue influence could be established on the basis described in the judgment of Dixon J in Yerkey v Jones.[32] Whether that judgment ever established an independent principle capable of founding a defence in these circumstances may be doubted. In any event, there are two reasons why the argument must fail. First, the Supreme Court of New South Wales has held that the principle in Yerkey v Jones ought no longer be applied in New South Wales,[33] and this guarantee is one the proper law of which is that of New South Wales. Second, on the evidence an equitable defence must fail, having regard to the considerations already referred to in the context of the refusal of discretionary relief under the CRA.
Finally, the appellant argued that Norman Hepburn, Neil Alan Macdonald, Finance & Mortgage Corporation Ltd and/or Moneycorp Pty Ltd were the agents of the respondent. Whether this argument was advanced as an independent line of appeal or in support of other arguments is not altogether clear. Whatever the basis, there is not the slightest evidence to raise it. It must fail.
The appeal against the entry of judgment must be dismissed.
The appellant also pressed the appeal against the dismissal of its application for the transfer of the proceedings to the Supreme Court of New South Wales under s. 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987. Section 13 of that Act provides that an appeal does not lie from a decision of a court in relation to the transfer of a proceeding under that Act. To avoid the effect of that section, the appellant argued that the court has an inherent supervisory jurisdiction to set aside an order which was void; and that the order dismissing the summons was void because no reasons were given and the rules of natural justice were breached. No authority was cited, which was not surprising. The argument is without authority, is contrary to principle, denies the plain effect of an act of Parliament and is hopeless.
The appeal should be dismissed.
Footnotes
[1] The record does not disclose what happened with respect to Aerogala.
[2] The proposed loan was for some reason described as a "loan facility".
[3] He is the son who was co‑signatory on a number of documents.
[4] Wrongly transcribed in his reasons for judgment as s. 9(2)(g).
[5]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at p. 99.
[6]Ibid at pp. 98-99.
[7]Australia and New Zealand Banking Group Limited v Barry [1992] 2 Qd.R. 12.
[8]Fancourt v Mercantile Credits Ltd (supra) at p. 98, citing Wallingford v Mutual Society (1880) 5 App.Cas. 685 at p. 704.
[9]Queensland Truss and Frame Pty Ltd v Grenadier Constructions No. 2 Pty Ltd [1992] 2 Qd.R. 428 at p. 432.
[10]Fancourt v Mercantile Credits Ltd (supra) at pp. 98-99.
[11] Of the New South Wales Bar.
[12] For example, there is no direct evidence of where the loan was made, nor of whether the documents were sent to the respondent by post.
[13]Water Board v Moustakas (1988) 180 CLR 491 at p. 497.
[14] [1983] 1 NSWLR 74.
[15] (1983) 1 NSWLR at p. 80.
[16] Unreported, Supreme Court of New South Wales, No. 12656 of 1994, 23 February 1996.
[17] (1985) 61 ALR 720 at p. 722.
[18] (1983) 154 CLR at p. 98.
[19] Compare Miles v Bull [1969] 1 Q.B. 258.
[20]Antonovic v Volker (1986) 7 NSWLR 151.
[21] CRA, s. 9.
[22] CRA, s. 7.
[23]Ibid at p. 157.
[24]Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 at p. 18.
[25]West v AGC (Advances) Ltd (1986) 5 NSWLR 610; Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) ASC ¶ 55-716; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256.
[26]West v AGC (Advances) Ltd (supra) at p. 620.
[27] (1994) ASC ¶ 56-270.
[28]Antonovic v Volker (1986) 7 NSWLR 151; Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) ASC ¶ 55-716; Nguyen v Taylor (1992) 27 NSWLR 48.
[29] At p. 58,433.
[30] If it appeared that she was liable to the respondent for negligent misrepresentation, that fact might itself be relevant to the exercise of the discretion.
[31] (1983) 151 CLR 447.
[32] (1939) 63 CLR 649.
[33]Akins v National Australia Bank (1994) 34 NSWLR 155.