Vivlios v Westpac Banking Corporation

Vivlios, the appellant, sought to appeal a decision of the primary judge who had ordered summary judgment in favour of Westpac Banking Corporation, the respondent, in relation to a guarantee agreement. The appellant had guaranteed a business finance agreement between the respondent and the first defendant. The respondent subsequently varied the agreement, prompting the appellant to argue that this variation might have altered the contract. The primary judge, however, held that the express terms of the guarantee preserved the appellant’s liability despite any variation. The judge also concluded that the appellant had no real prospect of a successful defence and ordered summary judgment for the respondent.

The legal issues before the court were whether the primary judge erred in concluding that the appellant had no real prospect of defending the respondent’s claim on the guarantee and whether the appellant established any preconditions for the reception of further evidence, as required by r 285 of the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court considered whether the bank's omission to disclose a valuation to the appellant constituted unconscionable or misleading conduct under sections 51AA, 51AB, and 52 of the Trade Practices Act 1974 (Cth). The court needed to determine if the omission could be construed as misleading or deceptive conduct.

The court found that the express terms of the guarantee were clear and unambiguous, preserving the appellant's liability irrespective of any variations to the underlying business finance agreement. The primary judge's decision was upheld as the appellant's affidavit did not comply with the rules and did not give rise to any arguable defence. The court also held that the bank’s omission to disclose a valuation did not constitute unconscionable or misleading conduct under the Trade Practices Act 1974 (Cth). The appeal was dismissed with costs. The application for leave to adduce fresh evidence was also refused.