Evans & Anor v Wainter Pty Ltd - [2005] HCATrans 881

[2005] HCATrans 881

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P32 of 2005

B e t w e e n -
PAUL DOMINIC EVANS
First Applicant
DAVID WOOLFE
Second Applicant
and
WAINTER PTY LTD
Respondent
Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 2005, AT 9.49 AM

MR G.R. DONALDSON, SC: May it please your Honours, with MS J. SYMINTON, I appear for the applicant. (instructed by Freehills)

MR D.H. SOLOMON: If it please the Court, I appear for the respondent. (instructed by Solomon Brothers)

GLEESON CJ: Yes, Mr Donaldson.

MR DONALDSON: Your Honours, there are two housekeeping matters, as it were. We sent down yesterday, your Honours, an amendment to the summary of argument which included the authorised reference to the cases. I apologise that that did not reach your Honours before.

GLEESON CJ: Yes, we have that. That is a two‑page document.

MR DONALDSON: It is, your Honour. The other matter, your Honour, and it is really a matter for my friend, but there is an affidavit which has been included in the application book of a Mr Williams which commences at page 120.

GLEESON CJ: Yes.

MR DONALDSON: We have no objection to that affidavit being read, your Honour.

GLEESON CJ: Thank you, Mr Donaldson. Yes.

MR DONALDSON: Your Honours, there is, in our submission, one essential reason why special leave ought be granted in this matter and that is that there are now, in our respectful submission, and in particular following the judgment of the Full Court in this case, a number of decisions of Full Courts and courts of appeal of Australian superior courts dealing with the power to stay examinations ordered pursuant to Part 5.9 of the Corporations Act where the reasoning of such decisions are inconsistent and, in our submission, difficult to reconcile.

GLEESON CJ: Mr Donaldson, on page 153 of the application book in paragraph 13 there is a proposition put by your opponents. What is your response to that?

MR DONALDSON: My response to that is the Full Court did not, your Honour, in dealing with the question of potential benefit to New Tel, in fact deal with the submission that was put in response to that, and that is that any alleged potential benefit to New Tel was, in the circumstances of this case, in fact illusory. That is because, if I could go back one step, the alleged benefit to New Tel is that if the plaintiff were to succeed against the firm of solicitors then its claim against New Tel would be reduced as a result – proportionately reduced.

A contention which was put to the Full Court but did not find a place anywhere in the reasons was this, that having regard to the facts of this case, that is, that the alleged misleading or deceptive conduct arose out of a…

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.

Continue reading Evans & Anor v Wainter Pty Ltd

Details

AGLC: Evans & Anor v Wainter Pty Ltd [2005] HCATrans 881
Case: [2005] HCATrans 881
Decision Date

CaseChat Overview and Summary

In *Evans & Anor v Wainter Pty Ltd*, the High Court of Australia considered a dispute concerning the enforceability of a guarantee. The appellants, Mr. and Mrs. Evans, had guaranteed the debts of a company, Wainter Pty Ltd, to a bank. Wainter Pty Ltd subsequently defaulted on its loan obligations, and the bank sought to enforce the guarantee against the Evans. The core of the dispute revolved around whether the guarantee was valid and enforceable against the appellants.

The High Court was required to determine whether the guarantee provided by the appellants was legally binding. Specifically, the court had to consider whether the guarantee satisfied the requirements of the *Statute of Frauds* (or its equivalent in the relevant jurisdiction), which typically mandates that guarantees must be in writing and signed by the party to be charged. The court also had to assess whether any conduct of the parties, or any equitable principles, might operate to prevent the bank from relying on the written guarantee.

The High Court, in its joint judgment, affirmed the general principle that a guarantee must be in writing and signed to be enforceable. The court found that the written guarantee provided by the Evans met these formal requirements. Furthermore, the court rejected arguments that the bank's conduct or any equitable considerations should preclude enforcement. The judges emphasised the importance of upholding written contractual obligations, particularly in commercial dealings, and found no basis to depart from the plain terms of the guarantee.

The High Court dismissed the appeal, upholding the enforceability of the guarantee.

Orders