Lisciandro v Official Trustee in Bankruptcy

This appeal was dismissed by the Federal Court of Australia, comprising Ryan, Drummond and Cooper JJ, on 16 August 1996. The appellant, Cono Lisciandro, sought to set aside the Official Trustee in Bankruptcy’s admission of a proof of debt claimed by Alminco Pty Ltd under a guarantee provided by the appellant in support of a credit application by the company of which he was a director. The primary judge, Kiefel J, had dismissed the appellant’s application under s 99(1) the Bankruptcy Act 1966 (Cth). The appellant contended that the guarantee was not enforceable against him. He contended that the guarantee was unconscionable, the person who procured his signature was Alminco’s agent, and that Alminco was bound by the conduct of that person under s 84(2) the Trade Practices Act 1974 (Cth). The appellant also sought to adduce further evidence pursuant to s 27 the Federal Court of Australia Act 1976 (Cth). The appeal was dismissed. The court held that the further evidence would not have produced a different result, had it been tendered at the primary hearing, and it was inappropriate to allow the appellant to depart from the way that party deliberately elected to conduct proceedings at first instance. The court also held that the appellant’s arguments regarding the enforceability of the guarantee were unavailing. The court held that the appellant’s disadvantage vis-a-vis the person who procured his signature was not known to Alminco and that there was nothing in the circumstances of the case known to Alminco to put it on inquiry as to the appellant’s circumstances or as to his understanding of the transaction involving the guarantee. The court also held that the guarantee was enforceable against the appellant.