Tuckfield v Rodighiero

[1999] NSWCA 441

CITATION:	Tuckfield v Rodighiero [1999] NSWCA 441 revised - 02/12/99
FILE NUMBER(S):	CA 40668/98
HEARING DATE(S):	25 November 1999
JUDGMENT DATE:	25 November 1999
PARTIES :	John Henton Tuckfield (Appellant) v Guiseppe Giordano Rodighiero (Respondent)
JUDGMENT OF:	Meagher JA at 14; Handley JA at 15; Fitzgerald JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	7423/98
LOWER COURT JUDICIAL OFFICER:	Fisher ADCJ

COUNSEL:	A: W Carney R: W Hodgekiss
SOLICITORS:	A: Helen Brudenell-Woods R: Warren F Ball & Co
CATCHWORDS:	Indemnity; enforceability of indemnity; "letter of comfort"; activation of obligation under indemnity
DECISION:	Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40668/98
DC 7423/98

MEAGHER JA
HANDLEY JA
FITZGERALD JA

THURSDAY 25 NOVEMBER 1999

JOHN HENTON TUCKFIELD v GUISEPPE GIORDANO RODIGHIERO

JUDGMENT

1   FITZGERALD JA: This is an appeal from a District Court judgment in favour of the respondent against the appellant for $101,889 plus interest and costs. The appellant and others, including the respondent's son, Mr R M Rodighiero, were directors and shareholders of Kemport Limited. 2   In consideration of the promise contained in a document which is in the appeal book page 75 and which I will set out as a schedule to this judgment, which document was executed by the appellant, the respondent's son, and a third director of Kemport, the respondent guaranteed Kemport's liability to the National Australia Bank and supported his guarantee by the deposit of a number of shares in another company, Power International Limited. 3   According to the appellant in his defence in the District Court, although not pressed on this appeal, the document which was signed by the appellant and the other two directors and shareholders in Kemport was not a guarantee or indemnity given by them but merely what was described as a "letter of comfort" given to the respondent which was not given by the directors but given by Kemport. Such a submission reflects no credit on the appellant, especially when it is noted that the respondent is a person of limited education and poor English language skills and that the material document was prepared by the appellant and signed at his office and there is no suggestion that the appellant advised the respondent to obtain independent legal advice. 4   It is perhaps not surprising in these circumstances that, although the appellant made various allegations in the defence which he caused to be filed in the District Court, he gave no evidence. The submission now made in the appellant's written submissions that no significance should be attached to his failure to give evidence is, however, surprising. 5   The trial judge found that Kemport defaulted on its liability to the National Australia Bank and that "…the bank called in the [respondent's] guarantee to the extent of $101,889". Shares in Power International Limited were sold and part of the proceeds were used to discharge Kemport's debt to the bank. 6   One point taken in this Court by the appellant was that the respondent's statement of claim was not “expressly based upon the document” set out in the schedule, but “upon a general allegation that the appellant amongst others undertook to the respondent that no loss would be suffered by him in the transaction”. This point is without merit. 7   The appellant's principal argument in this Court appeared to be that the respondent's evidence was insufficient. The appellant's written submissions contain the following assertion, namely:

“… that there was no evidence of any default or that the bank required the sale of the [Power International Ltd] shares to recoup the guarantee or that the bank was paid pursuant to the guarantee or that the proceeds of the sale assisted Kemport Limited or of a request being made to the appellant to honour the guarantee.”

Elsewhere in the appellant's written submissions it was asserted:
“The respondent failed to establish his case. … The case was by no means clear, it is said, and required some analysis and some assessment of the evidence of the witnesses and the other evidence relied upon to prove the respondent's case.”

8   However, the appellant's written submissions themselves trace evidence which is sufficient to support the respondent's case. While the respondent's evidence and the evidence called for him is not entirely satisfactory, it is adequate for the respondent's purposes, particularly having regard to the appellant's absence from the witness box. 9   Another complaint made by the appellant in his written submissions was that the trial judge “expressed himself so economically in the relevant part of the judgment” that his reasons “are insufficient to provide reasons for his decision, so that error is disclosed by his Honour's alleged failure in that regard.” There is no substance in that submission either. 10   Another submission, made without apparent purpose, was that there was no evidence that the respondent served a demand on the appellant prior to the respondent commencing his action in the District Court. A brief discussion in the appellant's written submissions concerning the "question of demands" leads nowhere. 11   The appellant also submitted that the trial judge "failed to give any proper consideration of the defences of laches or delay." His Honour was quite correct not to consider those matters since they are immaterial to the respondent's claim against the appellant. 12   The only other matter raised by the appellant concerned the trial judge's award of interest from the date when the respondent paid the bank, 8 February 1989, and not the date when the statement of claim was issued, 7 October 1993. The basis of this complaint appeared to be an absence of evidence of a demand by the respondent on the appellant on the earlier date. Why that should matter is not obvious. The appellant was a director of Kemport and doubtless familiar with the circumstance that its bank account had been credited with the payment made to its benefit by the respondent. In any event, no basis has been shown for this Court's interference with the trial judge's discretionary judgment with respect to interest. 13   The appeal should be dismissed with costs. 14   MEAGHER JA: I agree. I might add that I am tempted to say something a good deal more acerbic about the behaviour of the appellant than did Mr Justice Fitzgerald. However, I shall restrain myself from doing so. I agree with the orders proposed. 15   HANDLEY JA: I agree that the indemnity sued upon was enforceable and that the plaintiff made out a prima facie case of loss during the hearing in the District Court sufficient to activate the appellant's obligation under the indemnity. I agree with the orders proposed. 16   MEAGHER JA: The orders of the court therefore are the orders proposed by Mr Justice Fitzgerald.

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