Frenmast Pty Limited v Australia & New Zealand Banking Group Limited

[2014] HCASL 175

FRENMAST PTY LIMITED

v

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

[2014] HCASL 175
S41/2014

1. The respondent sought to enforce a guarantee purportedly made by the applicant.  The deed of guarantee purported to be signed by two directors, but one signature was forged.

2. On 26 October 2012, the Supreme Court of New South Wales (Adams J) declared that the applicant did not enter into the guarantee and refused to allow the respondent to enforce it. Adams J found that the assumption in s 129(5) of the Corporations Act 2001 (Cth), that a document had been duly executed by a company, did not apply because the director who had genuinely signed the guarantee did not have authority to enter into it, and because the respondent did not have relevant dealings with the company in relation to the guarantee.

3. On 19 December 2013, the Court of Appeal of the Supreme Court of New South Wales (Macfarlan, Meagher and Barrett JJA) allowed the respondent's appeal from the decision of Adams J.  The Court of Appeal found that there were relevant dealings because the applicant's director had actual or ostensible authority to communicate with the respondent in relation to the guarantee.  The Court of Appeal held that Adams J had erred in concluding that it was necessary for the director to have authority to enter into the guarantee before s 129 would apply.  As the respondent was not shown to have had notice of the forgery, it was entitled under s 129 to assume that the guarantee had been duly executed.

4. The applicant seeks an extension of time to file its application for special leave to appeal to this Court.  The decision of the Court of Appeal is not attended with sufficient doubt to justify the grant of special leave to appeal.  Special leave should be refused.  The grant of an extension of time would therefore be futile.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
11 September 2014 P.A. Keane