Deeds - Formalities - Execution - Property Law Act 1969 (WA) s 9(1) - Meaning of 'shall be attested' - Whether attestation requires signature - Whether attestation must be contemporaneous - Whether a witness can subsequently attest the signature of the party to be bound - Requirement of delivery of deed - Whether deed can be delivered if party to be bound evinces an intention not to be bound at the time of subsequent purported attestation
Deeds - Parties to a purported deed of guarantee - Where purported deed is executed only by obligees and not by obligor - Parties to the purported deed to be determined by objective construction of the deed as a whole including the principal (purported) loan agreement to which the deed of guarantee is supplementary
Deeds - Action for debt - Whether specific performance at common law - Whether deed enforceable in absence of consideration
Contract - Construction of written contract - Whether ambiguity exists - Whether alleged earlier oral agreement in terms which contradict the terms of written agreement can be used to construe the written agreement
Company law - Equity - Fiduciary duties - Duty to act in good faith and for proper purposes - Duty to avoid conflicts of interest - Failure to give independent consideration to the interests of the company - Rescission of transaction
Limitation of actions - Limitation Act 1935 s 38 (1)(e) - Meaning of 'action of covenant or of debt upon any bond or other specialty' - Whether action for enforcement of a debt is an 'action of covenant' - Meaning of 'specialty' - Whether action is an action upon a specialty
Limitation of actions - Limitation Act 1935 s 38 (1)(c)(v) - When cause of action accrues for a debt which is repayable on demand - Effect of a term in purported loan agreement creating a repayment date but providing that the debt is repayable on demand if any breach occurs before repayment date - When loan repayable under a contract of guarantee - Whether statute barred loan is 'due and payable' for the purposes of purported contract of guarantee
Evidence - Alleged iterative oral agreement in 2002 and 2003 - Inconsistency in evidence about oral agreement between principal witnesses for the plaintiff - Dangers in relying upon oral evidence of transactions occurring years ago
Legislation:
Bills of Sale Act 1878 Chattels Transfer Act 1930 (Kenya) Civil Procedure Act 1833 3 & 4 Wm IV c 42 Conveyancing Act 1919 (NSW) Evidence Act 1906 (WA) Informal Attestation Act 1814 59 Geo 3 c 168 Limitation Act 1623 21 Jac 1 c…
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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AGLC
Netglory Pty Ltd v Caratti [2013] WASC 364
Case
[2013] WASC 364
Decision Date
CaseChat Overview and Summary
The case of Netglory Pty Ltd v Caratti involved a dispute over a purported deed of guarantee and a loan agreement. The parties to the dispute were Netglory Pty Ltd, the plaintiff, and Mr Caratti, the defendant. The court was required to determine whether a deed of guarantee and a loan agreement were enforceable, and whether there was an antecedent oral agreement between the parties. The case was heard in the Supreme Court of Western Australia.
The legal issues before the court were whether the purported deed of guarantee and loan agreement were enforceable in the absence of consideration, whether there was an ambiguity in the terms of the agreements, and whether the agreements were statute barred. The court also had to determine whether the agreements were deeds, and whether they were enforceable under the Limitation Act 1935 (WA). Finally, the court had to consider whether there was an antecedent oral agreement between the parties that contradicted the terms of the written agreements.
The court found that the Loan Agreement contained no relevant ambiguity and was dependent upon a loan being made for any obligation to repay to arise. Since, on the proper construction of the Loan Agreement, no loan was made, there was no obligation to repay and no obligation secured by the Guarantee. The court also found that the Loan Agreement was not a specialty and was unenforceable due to the Limitation Act 1935 (WA). Neither the Loan Agreement nor the Guarantee was a deed due to the absence of attestation and neither was supported by consideration. Both were therefore null and void. The court found that Netglory had failed to prove the existence of any antecedent oral agreement. The effect of these reasons meant that it was unnecessary to make any orders to give effect to the conclusion that the Loan Agreement, if it had been valid, would have been entered into in breach of duty by Ms de Hollander, and should be set aside.
The court ordered that Netglory's claim must be dismissed, and the counterclaims of Mr Caratti and the Hocking Land Company allowed. The court found that there was no obligation to repay and no obligation secured by the Guarantee. The court also found that the Loan Agreement was not a specialty and was unenforceable due to the Limitation Act 1935 (WA). The court found that neither the Loan Agreement nor the Guarantee was a deed due to the absence of attestation and neither was supported by consideration. Both were therefore null and void. The court found that Netglory had failed to prove the existence of any antecedent oral agreement.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Conclusions on the claim and on the counterclaim Netglory's claim must be dismissed, and the counterclaims of Mr Caratti and the Hocking Land Company allowed, for the following reasons:(1)The Loan Agreement contains no relevant ambiguity and is dependent upon a loan being made for any obligation to repay to arise. Since, on the proper construction of the Loan Agreement no loan was made, there is no obligation to repay and no obligation secured by the Guarantee.(2)The Loan Agreement is not a specialty and it is unenforceable due to the Limitation Act 1935 (WA).(3)Neither the Loan Agreement nor the Guarantee is a deed due to the absence of attestation and neither is supported by consideration. Both are therefore null and void. Even apart from these legal conclusions, which require the claim to be dismissed and the counterclaim to be allowed, Netglory has also failed to prove the existence of any antecedent oral agreement. Although I find, on the balance of probabilities, that Mr Caratti signed the Loan Agreement and the Guarantee, I do not accept Ms de Hollander's or Mr Pollock's evidence that any oral agreement was reached between Mr Caratti and either or both of Ms de Hollander or Mr Pollock. The effect of these reasons means that it is unnecessary to make any orders to give effect to the conclusion that the Loan Agreement, if it had been valid, would have been entered into in breach of duty by Ms de Hollander, and should be set aside. Nor is it necessary to make any orders in relation to the third party notice which was issued to Ms de Hollander for contribution as a co‑guarantor. No submissions were made in relation to this third party notice and no issue arises in relation to it. I will hear from the parties concerning the form of orders to be made consequent upon these reasons.