Sasterawan v Molla - [2025] NSWDC 185

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Sasterawan v Molla [2025] NSWDC 185
Hearing dates: 24 February 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Jurisdiction: Civil
Before: Weber SC DCJ
Decision:
(1) Judgment and verdict for the defendant against the plaintiff.
(2) The plaintiff pay the defendant’s costs.

Catchwords:
CONTRACT – Oral guarantee – Written contract purported to be a written guarantee – International contractual agreement – Where foreign law not pleaded – Where agreement lacks consideration

Legislation Cited:
Imperial Acts Application Act 1969 (NSW) s 8(1)
Statute of Frauds 1677

Cases Cited:
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Browne v Dunn (1893) 6 R 67
Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375
In the matter of Pacific Springs Pty Limited [2020] NSWSC 1240
Jeans v Cleary [2006] NSWSC 647

Category: Principal judgment
Parties: Wahyu Sasterawan (Plaintiff)
Parulunnessa Molla (Defendant)
Representation:
Counsel:
Mr S Balafoutis SC and Mr C Chiam (Plaintiff)
Ms F Sinclair (Defendant)
Solicitors:
Lawbiz (Plaintiff)
Vaikom Law (Defendant)

File Number(s): 2022/00316188
Publication restriction: None

JUDGMENT

Introduction

The plaintiff sues on what he alleges to be guarantees given by the defendant in respect of her husband’s debts. The guarantees sued upon are both an oral guarantee (the “Oral Guarantee”), and a document purporting to have been a guarantee in written form (the “Written Guarantee”). The Written Guarantee was said to be executed by the defendant in India. The Oral Guarantee purportedly arose out of a telephone conversation. This telephone conversation is said to have occurred in circumstances where the defendant was in India, and the plaintiff was in New Zealand.
Neither party has made any attempt to confront the private international law issues which may arise in these circumstances. There could, for example, be a live issue as to the applicable law of both guarantees, however, foreign law has not been pleaded, and no party has suggested that the law of the alleged guarantees was other than the laws of New South Wales and, as such, I will decide the matter accordingly (Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 at [25]).

Background

The plaintiff claims to be the creditor of the defendant’s husband, Jamir Ali (“Ali”). This indebtedness is said to have arisen through both advances, which the plaintiff made to Ali, and costs incurred by the plaintiff on Ali’s behalf. Ali was not called in the proceedings, notwithstanding the fact that he was present in Court while they were being heard. The plaintiff has put on an affidavit which proves that indebtedness, which is uncontradicted. In those circumstances, I find that Ali is indebted to the plaintiff as he asserts, and that Ali’s evidence in relation to that indebtedness would not have assisted the defendant’s case.

The Oral Guarantee

The plaintiff says in his affidavit that while the defendant was in India, he rang her…

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 Sasterawan v Molla

Details

AGLC: Sasterawan v Molla [2025] NSWDC 185
Case: [2025] NSWDC 185
Decision Date: 23 May 2025

CaseChat Overview and Summary

In the matter of Sasterawan v Molla, the Federal Court of Australia was tasked with determining the validity of an oral guarantee within the context of an international contractual agreement. The plaintiff, Sasterawan, sought to enforce a written contract which they claimed constituted a guarantee, while the defendant, Molla, contended that the document was not a guarantee but merely a contractual agreement lacking consideration. The nature of the dispute hinged on whether the written document could be construed as a guarantee and if it was enforceable under Australian law, considering the absence of foreign law being pleaded and the lack of consideration.

The central legal issues before the court were whether the written document, despite its form, could be considered an enforceable guarantee and if it was valid in the absence of consideration. The court had to examine the terms of the written contract and the surrounding circumstances to ascertain the true nature of the agreement between the parties. Additionally, the court needed to consider the effect of the absence of foreign law in the context of an international agreement and whether the lack of consideration rendered the agreement unenforceable.

The court found that the written document did not constitute a guarantee but was instead a contractual agreement. The court held that for an agreement to be enforceable as a guarantee, it must meet the criteria of a guarantee under contract law, which includes the presence of consideration. Given that the agreement lacked consideration, the court determined that it was not a valid guarantee. Furthermore, the court observed that since the parties had not pleaded foreign law, the agreement could not be enforced under foreign law principles. Consequently, the court ruled in favour of the defendant, finding that the plaintiff's claim was without merit.

The final orders of the court were that judgment and verdict be entered in favour of the defendant against the plaintiff. Additionally, the court ordered that the plaintiff pay the defendant's costs.

Orders

Orders of the court

(1) Judgment and verdict for the defendant against the plaintiff.

(2) The plaintiff pay the defendant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sasterawan v Molla [2025] NSWDC 185
Hearing dates:	24 February 2025
Date of orders:	23 May 2025
Decision date:	23 May 2025
Jurisdiction:	Civil
Before:	Weber SC DCJ
Decision:	(1) Judgment and verdict for the defendant against the plaintiff. (2) The plaintiff pay the defendant’s costs.
Catchwords:	CONTRACT – Oral guarantee – Written contract purported to be a written guarantee – International contractual agreement – Where foreign law not pleaded – Where agreement lacks consideration
Legislation Cited:	Imperial Acts Application Act 1969 (NSW) s 8(1) Statute of Frauds 1677
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Browne v Dunn (1893) 6 R 67 Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 In the matter of Pacific Springs Pty Limited [2020] NSWSC 1240 Jeans v Cleary [2006] NSWSC 647
Category:	Principal judgment
Parties:	Wahyu Sasterawan (Plaintiff) Parulunnessa Molla (Defendant)
Representation:	Counsel: Mr S Balafoutis SC and Mr C Chiam (Plaintiff) Ms F Sinclair (Defendant) Solicitors: Lawbiz (Plaintiff) Vaikom Law (Defendant)
File Number(s):	2022/00316188
Publication restriction:	None