PMP Print Pty Ltd v Wood - [2005] VSC 230

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2054 of 2004

PMP PRINT PTY LTD (ACN 051 706 499)	Plaintiff
v
COLIN FREDERICK WOOD	Defendant

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JUDGE:	DODDS-STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 and 24 May 2005
DATE OF JUDGMENT:	30 June 2005
CASE MAY BE CITED AS:	PMP Print Pty Ltd v Wood
MEDIUM NEUTRAL CITATION:	[2005] VSC 230	Revised 20 July 2005

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CONTRACT – Guarantee and indemnity – Whether director’s guarantee of company’s liabilities unenforceable by reason of creditor’s misleading and deceptive conduct, unconscionable conduct, duress, absence of consideration or uncertainty – Held – Vitiating factors not established – Guarantee valid and enforceable.

ACCC v 4WD Systems Pty Ltd [2003] FCA 850; ACCC v Samton Holdings Pty Ltd (2002) 117 FCR 301; Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741; Crescendo Management Pty Ltd v Westpac Banking Corporation [1988] 19 NSWLR 40; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Australian National Nominees Pty Ltd v GPC No. 11 Pty Ltd [2004] NSWSC 773; Osric Investments Pty Ltd v Clout [2001] FCA 1402; Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.W. Collinson, S.C. with Mr C. Jeubner	O’Donnell Salzano Lawyers
For the Defendant	Mr C.F. Wood, litigant in person

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

SUMMARY OF FACTS AND BACKGROUND.......................................................................... 1

WHETHER DECEMBER GUARANTEE UNENFORCEABLE............................................... 15

Misleading and deceptive conduct........................................................................................... 15
No Consideration........................................................................................................................ 16
Unconscionable Conduct........................................................................................................... 17
Uncertainty................................................................................................................................... 21

CONCLUSION................................................................................................................................. 29

HER HONOUR:

INTRODUCTION

In this proceeding, the plaintiff, PMP Print Ltd (“PMP”), by amended statement of claim, claims from the defendant, Mr Colin Wood, the sum of $354,427.76 allegedly due under a guarantee executed on 12 December 2003, whereby the defendant guaranteed the payment of moneys owed to PMP by Design Graphics Pty Ltd (“Design Graphics”). Alternatively, the plaintiff claims the sum of $305,466.79 under a guarantee which Mr Wood executed in its favour on 4 June 2003.[1]
[1]At trial, Mr Wood contended that the amount claimed by PMP included certain overcharging. He was unable to clarify the alleged amount of overcharging, but the plaintiff did not press its claim to $3,804.76 of the principal claim of $354,427.76.

Mr Wood, who is not legally qualified, represented himself at trial. Mr Wood had legal representation for a part of the preparation for trial. His defence and counterclaim dated 2 December 2004 to the plaintiff’s statement of claim dated 17 September 2004 were drawn by counsel. The statement of claim dated 17 September 2004 made claims only in relation to the guarantee dated 12 December 2003. The defendant’s defence and counterclaim responded only to those claims.

By application made 29 April 2005 the plaintiff sought, and was granted, leave to file and serve an amended statement of claim, which added the alternative claim based on a guarantee dated 4 June 2003. The defendant,…

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: [2005] VSC 230
Decision Date: 30 June 2005

CaseChat Overview and Summary

In the Federal Court of Australia, PMP Print Pty Ltd sought to enforce a guarantee against Wood, a director of the company, for the debts of the company. The respondent, Wood, challenged the enforceability of the guarantee, arguing it was vitiated by various factors including misleading and deceptive conduct, unconscionable conduct, duress, absence of consideration, or uncertainty. The Court was required to determine whether these vitiating factors rendered the guarantee unenforceable.

The primary legal issue was whether the guarantee was affected by any conduct that could render it unenforceable. The Court examined whether there was any misleading or deceptive conduct, unconscionable conduct, or duress by the creditor in obtaining the guarantee, as well as whether there was a lack of consideration or uncertainty in the terms of the guarantee. The Court also considered whether the guarantee was clear and unambiguous.

The Court found that the guarantee was valid and enforceable. It held that Wood had not established any of the vitiating factors that would render the guarantee unenforceable. The guarantee was clear and unambiguous, and there was no evidence of misleading or deceptive conduct, unconscionable conduct, duress, absence of consideration, or uncertainty. The Court concluded that the guarantee was a valid and binding agreement.

The Court ordered that the guarantee was enforceable, and PMP Print Pty Ltd was entitled to recover the amount guaranteed from Wood. The Court dismissed Wood's defence and ordered him to pay the guaranteed amount to PMP Print Pty Ltd.

Orders