Brown v Elite Nominees Pty Ltd - [2022] WADC 77

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BROWN -v- ELITE NOMINEES PTY LTD [2022] WADC 77
CORAM:   BOWDEN DCJ
HEARD:   22 JULY 2022
DELIVERED          :   19 AUGUST 2022
FILE NO/S:   APP 68 of 2021
BETWEEN:   CHRISTINE MARGARET BROWN
Appellant
AND
ELITE NOMINEES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T DARGE
File Number            :   PER/GCLM/8162/2015

Catchwords:

Appeal from Magistrates Court - Terms of remit - Credit application/guarantee - Interpretation of guarantee

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr R Nash
Respondent	:	Mr F A Robertson

Solicitors:

Appellant	:	Mossensons
Respondent	:	Mettam Legal

Case(s) referred to in decision(s):

Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Brown v Elite Nominees Pty Ltd [2020] WADC 156
Defendi v Szigligeti [2019] WASCA 115
Re An Application under the Magistrates Court Act 2004; Ex Parte Snook [No 2] [2007] WASC 255
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145

BOWDEN DCJ:

The respondent is a fuel supplier trading as Gnowangerup Fuel Supplies.
The appellant and her former partner, John Brown, were directors and shareholders of CJWFAMB Pty Ltd which company (the company) operates the Shell Roadhouse Williams.
In November 2011 the appellant completed and signed an account/credit application (ACA) which included a guarantee and faxed it to the respondent. Subsequently between September 2014 and October 2014 the respondent supplied products totalling $27,292.73 on credit to the Shell Roadhouse. The company did not pay for that product and the respondent proceeded against the appellant in the Magistrates Court pursuant to the guarantee contained within the ACA.
On 23 July 2020 (the magistrate's original decision) the learned magistrate found that the appellant was liable to the respondent under the ACA in her capacity as a guarantor for the debt of $27,292.73.
The appellant appealed that decision.

The original appeal

The appellant's original appeal was based on four grounds.
Ground 1 was that the learned magistrate made an error of law in finding that by signing the credit application dated 10 November 2011 (credit application) the appellant had, on a proper construction of the document guaranteed the obligations of the company.
I found that the learned magistrate's conclusion that based on the text and form of the ACA, viewed objectively, the applicant intended to be bound by the guarantee and the learned magistrate had not been shown to be in error of law or in fact and dismissed ground 1.
Ground 2 of the original appeal was that as the credit application required execution by both the appellant and John Brown as joint and several guarantors as a matter of law the obligations under the guarantee were conditional and dependent on it being executed by both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WADC 77
Decision Date

CaseChat Overview and Summary

Christine Margaret Brown appealed against the District Court's decision that upheld the original decision of the Magistrates Court. The appellant argued that the learned magistrate made errors in law and fact and denied her procedural fairness. The respondent argued that the learned magistrate correctly applied the law and adhered to procedural fairness. The court dismissed the appeal and held that the learned magistrate correctly applied the law and adhered to procedural fairness. The court found that the learned magistrate correctly determined the issue of whether notice was given and the effect on the guarantee. The court also found that the learned magistrate did not make any error in law or fact in failing to make any finding as to whether written notice was given to the customer that credit facilities had been given and specifying the terms of credit. The court held that the guarantee applies to any monies advanced by way of credit, not just monies advanced pursuant to credit facilities. The court found that the learned magistrate was right to find in favour of the respondent, and the result remains the same.

Orders