Allied Mills v Sikali

[2004] QDC 405

DISTRICT COURT OF QUEENSLAND

CITATION:	Allied Mills v Sikali [2004] QDC 405
PARTIES:	ALLIED MILLS PTY LIMITED ACN 000 008 739 (Plaintiff) v HASSAN SIKALI (Defendant)
FILE NO/S:	4432/03
DIVISION:	District Court
PROCEEDING:	Trial
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	12th October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4th and 5th October 2004
JUDGE:	Forde DCJ
ORDER:	Orders

1.    It is declared that the contract of guarantee is void and unenforceable.

2.    The plaintiff’s claim is dismissed.

3.     It is ordered that the plaintiff do pay the costs of and incidental to the action (including reserved costs if any) of the defendant Hassan Sikali to be assessed.

CATCHWORDS:	CONSTRUCTION OF CONTRACT - GUARANTEE – NON EST FACTUM – UNDUE INFLUENCE AND UNCONSCIONABLE CONDUCT – Trade Practices Act 1974 (CTH) ss 51AC, 52. – Contracts Review Act 1980 (NSW) ss 4, 6 & 9 – Jones v Dunkel – Construction of Contract - Where guarantee void if unjust
Trade Practices Act 1974 (CTH).
Contracts Review Act 1980 (NSW).
Bank of Australia Ltd. v Amadio (1982-1983) 151 CLR 447.
Burrawong Investments Pty Ltd v Lindsay and Anor. [2002] QSC 082. Challenge Bank Limited v. Pandya (1993) 60 SASR 330.
Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144.
Graham v Lewis (1888) 22 QBD 1.
Jones v Dunkel (1959) 101 CLR 298.
Lisciandro v Official Trustee in Bankruptcy (1996) 139 ALR 689.
Louth v Diprose [1992] 175 CLR 621.
Micarone v Perpetual Trustees [1999] SASC 265.
Nguyen v Taylor (1992) 27 NSWLR 48.
Osborne v Drive Park [2004] SASC 261.
Petelin v Cullen [1975] 132 CLR 355
West v AGC (Advances) Ltd and others (1986) 5 NSWLR 610.
COUNSEL:	Mr C Jennings for the Plaintiff Mr G Coveney for the Defendant
SOLICITORS:	MacGillivrays Solicitors Slattery Thompson

Introduction

1. The defendant, Hassan Sikali, was born in Syria. He is thirty six years old. He came to Australia in 1993. He had some limited tuition in English whilst in Syria but has learnt to converse in English. He married his wife, Anna, in Syria. She was a permanent resident of Australia. After arriving in Australia the defendant worked in various jobs including running a fruit shop with his wife from 1996 to 2001. Due to a downturn in business, he sold the fruit shop. He took employment with the Chullora Lebanese Bakery (the “bakery”), Greenacre in New South Wales in May 2002. His duties were as a delivery driver then he worked in the bakery itself. He was paid about $360.00 per week once he was full time and sometimes received more if he worked overtime.

2. The proprietor of the bakery, Mr.Yehya Ladkani decided to vary his credit arrangements with the plaintiff, Allied Mills Pty Ltd (formerly known as Goodman Fielder Mills Limited). The plaintiff provided flour and meal to the bakery. An employee of the plaintiff, Gregory Robert Haddon, was responsible for finalising those arrangements. He was told by Mr.…