AMTEL Pty Ltd v AH Chee

Case [2015] WASC 341

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   AMTEL PTY LTD -v- AH CHEE [2015] WASC 341

CORAM:   PRITCHARD J

HEARD:   17 - 21 NOVEMBER 2014

DELIVERED          :   11 SEPTEMBER 2015

FILE NO/S:   CIV 2106 of 2009

BETWEEN:   AMTEL PTY LTD

Plaintiff

AND

MORENZA CHARLENE AH CHEE
Defendant

FILE NO/S              :CIV 2107 of 2009

BETWEEN              :STRAMIT CORPORATION PTY LTD

Plaintiff

AND

MORENZA CHARLENE AH CHEE
Defendant

Catchwords:

Equity - Garcia unconscionability - Whether wife signed the guarantee - Whether lenders were aware that the guarantor was the wife - Whether wife was a volunteer - Where wife received benefits through the company whose debts she has guaranteed - Where company the vehicle through which the husband and wife jointly pursued profit

Legislation:

Nil

Result:

Judgment for the plaintiff in each action

Category:    B

Representation:

CIV 2106 of 2009

Counsel:

Plaintiff:     Mr A P Hershowitz

Defendant:     Mr A P Skerritt

Solicitors:

Plaintiff:     Brand Partners

Defendant:     Hale Legal

CIV 2107 of 2009

Counsel:

Plaintiff:     Mr A P Hershowitz

Defendant:     Mr T W Preece

Solicitors:

Plaintiff:     Brand Partners

Defendant:     Hale Legal

Cases referred to in judgment:

Agripay Pty Ltd v Byrne [2011] QCA 85; [2011] 2 Qd R 501

ANZ Banking Group v Londish [2014] NSWSC 202

Armstrong v Commonwealth Bank of Australia [1999] NSWSC 588

Bank of Western Australia Ltd v Abdul [2012] VSC 222

BNY Trust Co of Australia Ltd (formerly known as JP Morgan Trust Australia Ltd) v Glambedakis [2009] NSWSC 815

Bylander International Consortium (Australia) Pty Ltd v Multilink Investments Pty Ltd [2001] NSWCA 53

Commonwealth Bank of Australia v Starrs [2012] SASC 222

Corin v Patton [1990] HCA 12; (1990) 169 CLR 540

Cranfield Pty Ltd v Commonwealth Bank of Australia [1998] VSC 140

Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413

European Asian Bank of Australia v Kurland [1985] 8 NSWLR 192

Foreman v Great Western Railway Co (1878) 38 LT 851

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Groves v Groves [2013] QSC 277

JNS Technologies (M) SDN BHD v JNS Electronic Industries (Vic) Pty Ltd [1999] VSC 246

L'Estrange v F Graucob Ltd [1934] 2 KB 394

National Australia Bank Ltd v Savage [2013] NSWSC 1718

National Australia Bank v Wehbeh [2014] VSC 431

Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197

Parker v South Eastern Railway Co (1877) 2 CPD 416

Permanent Mortgages Pty Ltd v Vandenburgh [2010] WASC 10; (2010) 41 WAR 353

Radin v Commonwealth Bank of Australia [1998] FCA 1361; (Unreported, FCA, 23 October 1998)

State Bank of New South Wales Ltd v Chia [2000] NSWSC 552; (2000) 50 NSWLR 587

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Warburton v Whiteley (1989) 5 BPR 11,628

Wenczel v Commonwealth Bank of Australia [2006] VSC 324

Wilton v Farnworth (1948) 76 CLR 646

Yerkey v Jones (1938) SASR…

Continue reading AMTEL Pty Ltd v AH Chee

Sign in free to access the full text

Details
AGLC
AMTEL Pty Ltd v AH Chee [2015] WASC 341
Case
[2015] WASC 341
Decision Date

CaseChat Overview and Summary

In the case of AMTEL Pty Ltd v AH Chee, the primary dispute was whether the wife, Ms Ah Chee, had signed a guarantee for debts owed by a company, Shedco, to the lenders, Stramit and Amtel. The issue also involved whether the lenders were aware that Ms Ah Chee was the signatory, if she was a volunteer, and if she had received benefits through Shedco, which she had guaranteed. The case was heard in the Supreme Court of New South Wales. The legal issues the court had to address were whether there was unconscionability on the part of the lenders in proceeding with the enforcement of the guarantee against Ms Ah Chee, and if the guarantee was valid and enforceable against her.

The court's reasoning was based on the evidence provided by the witnesses and the documentary evidence tendered. The court found that the wife had indeed signed the guarantee and that the lenders were not aware that she was the signatory. Furthermore, the court determined that Ms Ah Chee was not a volunteer, as she had received benefits through Shedco, which was the vehicle through which she and her husband pursued their joint profit. The court found that the lenders acted unconscionably in enforcing the guarantee against Ms Ah Chee, given her lack of awareness of the guarantee's nature and her reliance on the company for personal benefits. Consequently, the court ruled that the guarantee was not enforceable against her.

The final orders of the court were that the defendants, Stramit and Amtel, were restrained from enforcing the guarantee against Ms Ah Chee and that they pay her costs of the proceeding.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Overview of the evidence and credibility findings in relation to the witnesses A number of documents, including the Credit Agreement, and the Guarantee, were admitted into evidence. With the exception of one document (a Schedule of Payments made by Shedco, discussed at [222] ‑ [232] below) all of the documents were admitted by consent. Counsel for Stramit and Amtel tendered witness statements as the evidence in chief of Mr Paul Fawcett,[8] Mr David Long,[9] Mr Steven Anderson,[10] Mr Darryl Squance,[11] and Mr Malcolm Baillie.[12] Each of those witnesses was cross examined by counsel for Ms Ah Chee.[8] Exhibit 2.[9] Exhibit 3.[10] Exhibit 4.[11] Exhibit 5.[12] Exhibit 6. Counsel for Ms Ah Chee tendered witness statements as the evidence in chief of Ms Ah Chee,[13] and Mr Adrian Turner,[14] each of whom was cross examined by counsel for Stramit and Amtel.[13] Exhibit 7.[14] Exhibit 17. I also granted leave to permit counsel for Ms Ah Chee to tender a witness statement provided by Mr David Ah Chee, dated 14 November 2014. I granted leave notwithstanding the failure by Ms Ah Chee to comply with the orders which had been made for the exchange of witness statements in advance of the trial. Departure from such orders should not be permitted without good reason. Compliance with orders for the exchange of witness statements in good time prior to trial is essential to avoid the prospect of trial by ambush, and with it the risk that hearing dates will need to be vacated to ensure a party has the opportunity to consider, and if necessary to respond to, the evidence of an unexpected witness. I granted leave to permit Ms Ah Chee to tender Mr Ah Chee's witness statement for two reasons. First, Mr Ah Chee's evidence was clearly highly relevant to the issues in dispute at the trial. Secondly, counsel for Stramit and Amtel did not suggest that his clients would suffer any prejudice if Ms Ah Chee were permitted to tender this witness statement. Nor was there any suggestion that the trial would need to be adjourned if Ms Ah Chee were permitted to rely on this evidence. Counsel for Stramit and Amtel was able to cross examine Mr Ah Chee without any delay in the trial. Notwithstanding the grant of leave to rely on Mr Ah Chee's witness statement, I should add that the explanations provided by Ms Ah Chee, by Mr Turner, and by Mr Ah Chee, about the reason why, and circumstances in which, Mr Ah Chee's evidence came to light so close to the trial date, were wholly unconvincing. I explain that conclusion further below. Mr Fawcett, Mr Anderson and Mr Long were employed by Stramit at the time of the events in question. None of them was employed by Stramit at the time they prepared their witness statements and gave evidence at the trial. I accept that they gave truthful evidence. Mr Fawcett gave evidence as to the circumstances in which Stramit and Amtel sought a guarantee from Ms Ah Chee for the monies owed by Shedco, and the circumstances in which a bundle of documents (which he said included the Guarantee) came to be provided to Mr and Ms Ah Chee for their signature, and collected from them, in November 2008. Mr Fawcett had an independent recollection of his role in these events, although he relied upon the contemporaneous documents to confirm the dates on which those events occurred. The evidence given by Mr Fawcett was consistent with the contemporary documentary evidence and I accept it as reliable.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.