Singh v De Castro

Case [2017] NSWCA 241

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241
Hearing dates:5 September 2017
Decision date: 22 September 2017
Before: Macfarlan JA at [1];
Gleeson JA at [2];
Sackville AJA at [3]
Decision:

Matter No 2016/277163
Appeal dismissed with costs.

 

Matter No 2016/285497
Appeal dismissed with costs.

 Matter No 2016/287642
Appeal dismissed with costs.
Catchwords: CONTRACTS – whether primary Judge correct to find that the appellants signed a loan agreement in a form incorporating a guarantee – whether persons named as guarantor signed merely as witnesses or whether they signed in their personal capacity
Legislation Cited:

Corporations Act 2001 (Cth), s 127(1)

 

Contracts Review Act 1980 (NSW)
Evidence Act 1898 (NSW), s 36
Evidence Act 1995 (NSW), s 51

Uniform Civil Procedure Rules 2005, r 51.53(1)
Cases Cited: Adami v The Queen (1959) 108 CLR 605; [1959] HCA 70
Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160
De Castro v New Ridge Property Group Pty Ltd [2016] NSWDC 246
Dunn v Brown (1911) 12 SR (NSW) 22
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Harris v Burrell and Family Pty Ltd [2010] SASCFC 12
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Mack v Lenton (1993) 32 NSWLR 259
NEC Information Systems Australia Pty Ltd v Linton (1985) NSW ConvR 55-240
R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359
Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909
Singh v De Castro [2017] NSWCA 130
Urquhart v Butterfield (1887) 37 Ch D 357
Wendt v Lind; ex parte Lind [1913] St R Qd 240
Texts Cited: JD Heydon, Cross on Evidence (10th Aust ed 2015, LexisNexis)
Category:Principal judgment
Parties:

Matter No. 2016/277163
Harjit Singh (First Appellant)
Moninderjit Singh (Second Appellant)
Mandhir Singh Sandha (Third Appellant)
Ignacio De Castro (First Respondent)
Leticia De Castro (Second Respondent)

 

Matter No. 2016/285497
Sukhdev Singh Dhaliwal (Appellant)
Ignacio De Castro (First Respondent)
Leticia De Castro (Second Respondent)

  Matter No. 2016/287642
Gurmeet Singh Brar (Appellant)
Ignacio De Castro (First Respondent)
Leticia De Castro (Second Respondent)
Representation:

Counsel:
Mr F Santisi (Appellants in 2016/277163)
Mr G Foster (Appellant in 2016/285497)
Mr B Dean (Appellant in 2016/287642)
Mr J Knackstredt (Respondents in all appeals)

 

Solicitors:
Matter No. 2016/277163
Michael Vassili Barristers & Solicitors (Appellants)
McLachlan Thorpe Partners (Respondents)

   

Matter No. 2016/285497
Harish Prasad & Associates (Appellant)
McLachlan Thorpe Partners (Respondents)

  Matter No. 2016/287642
Burston, Cole & Associates (Appellant)
McLachlan Thorpe Partners (Respondents)
File Number(s):2016/277163; 2016/285497; 2016/287642
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
[2016] NSWDC 246
Date of Decision:
1 September 2016
Before:
Montgomery DCJ
File Number(s):
2014/279025

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Details
AGLC
Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241
Case
[2017] NSWCA 241
Decision Date

CaseChat Overview and Summary

The appellants, Mr. and Mrs. Singh, appealed a decision of the primary judge who found that they had signed a loan agreement that incorporated a guarantee. The dispute concerned whether the appellants had signed the document in their personal capacity as guarantors or merely as witnesses to the signature of another party.

The Court of Appeal was required to determine whether the primary judge had erred in finding that the appellants were bound by the guarantee provisions within the loan agreement. This involved an assessment of the circumstances surrounding the signing of the document and the intention of the parties at that time.

The Court of Appeal upheld the primary judge's findings. It reasoned that the document was clearly presented as a loan agreement and guarantee, and the appellants' signatures appeared in the designated sections for guarantors. The court found no evidence to support the appellants' claim that they believed they were signing only as witnesses. The legal principle applied was that a party who signs a document is presumed to have read and understood its contents, and is generally bound by its terms unless there is clear evidence of misrepresentation, fraud, or a fundamental mistake as to the nature of the document.

The appeals were dismissed, and the appellants were ordered to pay the costs of the proceedings.

Orders

Orders of the court

Matter No 2016/277163

Appeal dismissed with costs.

Matter No 2016/285497

Appeal dismissed with costs.

Matter No 2016/287642

Appeal dismissed with 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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