Tantex Investments Pty Limited v Biviano

Tantex Investments Pty Limited (the appellant) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales. The dispute concerned the enforceability of a guarantee provided by Mr Biviano (the respondent) in favour of Tantex Investments.

The primary legal issue before the Court of Appeal was whether the respondent was bound by the guarantee, given that he had signed it under circumstances where he was allegedly misled as to its nature and effect. Specifically, the court had to determine if the respondent's signature was procured by a misrepresentation amounting to a non est factum, thereby vitiating the guarantee.

The Court of Appeal considered the principles of the non est factum defence, which requires that the party seeking to rely on it must have been under a fundamental misapprehension as to the class or character of the document they signed, and that this misapprehension was not due to their own carelessness. The court found that the evidence did not establish that the respondent was misled as to the fundamental nature of the document he signed, nor that he had taken all reasonable precautions. Consequently, the defence of non est factum was not made out.

The appeal was dismissed, and the Supreme Court's decision upholding the enforceability of the guarantee was affirmed.