Wanis v Lifestyle Residences Hobsons Bay Pty Ltd

[2024] NSWSC 274

Supreme Court

New South Wales

Medium Neutral Citation:

Wanis v Lifestyle Residences Hobsons Bay Pty Ltd [2024] NSWSC 274

Hearing dates:

7 March 2024

Date of orders:

20 March 2024

Decision date:

20 March 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   The answer to question (a), Is the plaintiff entitled to a declaration to the effect that, pursuant to the Deeds of Guarantee executed by each of the second and third defendants, they are jointly and severally liable to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Loan Agreement and the General Security Agreement? is: Yes.

(2)   The answer to question (b), Is the plaintiff entitled to judgment with costs against the second defendant and the third defendant, jointly and severally, pursuant to the Deeds of Guarantee executed by each of the second and third defendants for such amount as is owing to the plaintiff by the first defendant pursuant to the Loan Agreement or the General Security Agreement? is: Yes.

(3)   A declaration that, pursuant to the Deed of Guarantee executed by the second defendant on 8 March 2019 and the Deed of Guarantee executed by third defendant on 8 March 2019, each of those defendants is liable, jointly and severally with the other, to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Loan Agreement executed on 8 March 2019 and the General Security Agreement executed on 8 March 2019.

(4)   Judgment for the plaintiff against the second and third defendants, jointly and severally, in sum of $150,000.00.

(5)   Order (4) is without prejudice to the plaintiff’s rights to claim further sums from the second and third defendants under the Deeds of Guarantee executed by each of the second and third defendants on 8 March 2019 in respect of other liabilities or obligations of the first defendant under the Loan Agreement executed on 8 March 2019 and the General Security Agreement executed on 8 March 2019 in addition to the liability to repay the principal sum advanced of $150,000.00.

(6)   The second and third defendants are to pay the plaintiff’s costs of the notice of motion dated 2 May 2023 in addition to the costs already ordered to be paid by Schmidt AJ by order (2) made on 5 September 2023.

(7)   Otherwise, the notice of motion dated 2 May 2023 is dismissed.

Catchwords:

GUARANTEE AND INDEMNITY – deed of guarantee – whether deed of guarantee executed by guarantor – no point of principle

EVIDENCE – evidence of execution of a document – execution of document not admitted by defendant – comparison by tribunal of fact of authentic signature of defendant with non-admitted signature – document found to have been executed by defendant

Cases Cited:

Adami v The Queen (1959) 108 CLR 605

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Oil Basins Ltd v The Commonwealth (1993) 178 CLR 643

R v Hannes [2000] NSWCCA 503

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Singh v De Castro [2017] NSWCA 241

Unions NSW v New South Wales [2023] HCA 4

Wanis v Lifestyle Residences Hobsons Bay Pty Ltd [2023] NSWSC 1066

Ye v Chen [2022] NSWSC 494

Category:

Principal judgment

Parties:

John Wanis (Plaintiff)
Lifestyle Residences Hobsons Bay Pty Ltd (First Defendant)
Peter Van (Second Defendant)
Dale Harrison (Third Defendant)
ACapital Finance No. 3 Pty Ltd (Fourth Defendant)
Immuto Fleur Nominees Pty Ltd (Fifth Defendant)

Representation:

Counsel:
A Munro (Plaintiff)

There was no appearance for the First, Second, Third or Fourth Defendant

Ms Lim appeared for the Fifth Defendant but was excused

Solicitors:
Heathfield Grosvenor Lawyers (Plaintiff)
Welner Lawyers (First, Second and Third Defendants)
Arnold Bloch Liebler (Fourth Defendant)
Ark Legal (Fifth Defendant)

File Number(s):

2022/00167746

Judgment

Introduction

1. The plaintiff, Mr John Wanis, commenced the present proceedings in 2022 and filed an amended statement of claim on 31 October 2022. By that amended pleading, Mr Wanis in effect seeks to enforce his rights in relation to, and recover funds he advanced to the first defendant, Lifestyle Residences Hobsons Bay Pty Ltd (Lifestyle) [1] (now in receivership) for development of, a property in Victoria.

   1. The plaintiff was previously named Millers Road Custodians Pty Ltd and was referred to by this name in some of the relevant documentation.

2. The second and third defendants, Mr Peter Van and Mr Dale Harrison, are alleged to have signed documentation by which, inter alia, they each guaranteed the repayment of the funds advanced by Mr Wanis to Lifestyle.

3. The fourth and fifth defendants, ACapital Finance No.3 Pty Ltd and Immuto Fleur Nominees Pty Ltd, are alleged to be lenders who also advanced funds to the first defendant and who hold first and second registered mortgages, respectively, over the Victorian property. For the purposes of this judgment, Mr Wanis’s claims against Lifestyle and the fourth and fifth defendants are not relevant and do not need to be considered further.

4. On 30 November 2022, Mr Van and Mr Harrison filed their defence to the amended statement of claim.

The 2023 notice of motion for determination of a separate question

5. By a notice of motion filed on 2 May 2023, Mr Wanis sought the following orders relating to Mr Van and Mr Harrison:

“1 Order pursuant to r.28.2 of the UCPR 2005 that the following question to be determined separately from any other question in the proceedings and before any further trial of the proceedings.

a. Is the plaintiff entitled to a declaration that the second and third defendants (by reason of the Facility Agreement and General Security Agreement dated on or about 22 February 2019 and Deeds of Guarantee executed by each of them on 19 February 2019) are pursuant to that Deed of Guarantee jointly and severally liable to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Facility Agreement and General Security Agreement.

b. Is the plaintiff entitled to judgment with costs against the second and or third defendants jointly and severally in such amount that is owing to the plaintiff pursuant to the Facility Agreement, the General Security Agreement and the Deeds of Guarantee executed by the first and or second and third defendants on or about 19 February 2019.

2 If the answer to 1 above is yes and the Declarations in the form pleaded or substantially similar to the form pleaded are made, judgment for the plaintiff as against the second and third defendants jointly and severally in the sums the Court determines to be owing by the second and third defendant to the plaintiff pursuant to the Declarations made.

3 Alternatively to 1 and 2 above, judgment for the plaintiff as against the second and third defendants, jointly and severally, in the sum of such amount as is determined by the Court to be owing by them to the plaintiff pursuant to the Facility Agreement and General Security Agreement dated on or about 22 February 2019 and Deeds of Guarantee executed by each of them on 19 February 2019.

4 The second and third defendants pay the costs of this motion.

5 Such further or other order as the Court considers appropriate.”

6. Prayer 1 in the notice of motion was the subject of a hearing before Schmidt AJ on 28 August 2023.

7. On 5 September 2023, her Honour delivered judgement, Wanis v Lifestyle Residences Hobsons Bay Pty Ltd [2023] NSWSC 1066, and made the following orders:

“1. Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) the following questions are to be determined separately from any other questions in the proceedings and before the trial of the other questions in the proceedings:

‘a. Is the plaintiff entitled to a declaration that the second and third defendants (by reason of the Facility Agreement and General Security Agreement dated on or about 22 February 2019 and Deeds of Guarantee executed by each of them on 19 February 2019) are pursuant to that Deed of Guarantee jointly and severally liable to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Facility Agreement and General Security Agreement.

b. Is the plaintiff entitled to judgment with costs against the second and or third defendants jointly and severally in such amount that is owing to the plaintiff pursuant to the Facility Agreement, the General Security Agreement and the Deeds of Guarantee executed by the first and or second and third defendants on or about 19 February 2019.’

2. Mr Van and Mr Harrison are to bear Mr Wanis’ costs of the motion, as agreed or assessed; and

3. The matter will come before me at 9.30 am on 12 September 2023 for further directions, about which they should confer beforehand.”

8. The judgment of Schmidt AJ should be read in conjunction with this judgment.

9. After her Honour delivered her judgment on 5 September 2023, the matter was listed on a number of occasions and directions were made to prepare for the hearing of the separate questions and the remainder of the motion including, on 22 September 2023, a direction that the second and third defendants were to file and serve any evidence on which they wished to rely on or before 13 October 2023. No evidence was filed on behalf of Mr Van or Mr Harrison.

The hearing on 7 March 2024

10. On 7 March 2024, the matter came on before me for hearing in relation to determination of the separate question and the remaining prayers for relief in the notice of motion. On that occasion, Mr Munro of counsel appeared for Mr Wanis but there was initially no other appearance. In case there were some difficulty with appearances in person, my Associate provided the audio-visual link to the solicitors for the parties and the matter was formally called.

11. There were no further appearances in person as a result of the matter being formally called. On the audio-visual link, however, Ms Lim, solicitor for the fifth defendant, appeared as a matter of courtesy to the Court, even though the fifth defendant was not relevantly affected by the separate question or the notice of motion of 2 May 2023. Ms Lim was excused from further attendance. No one else appeared by audio-visual link.

12. The evidence of an email chain passing between the solicitors for the plaintiff and the solicitors for Mr Van and Mr Harrison established that the solicitor for Mr Van and Mr Harrison, Mr Welner, had sent an email to the solicitor for Mr Wanis on 28 February 2024 after the matter had been listed for hearing on 7 March 2024, saying in effect that he would get back to Mr Wanis’s solicitor shortly. There was, however, no further communication from Mr Welner after that email.

13. There was nothing in the evidence to suggest that Mr Welner gave notice to Mr Wanis’s solicitors that Mr Van and Mr Harrison would not be appearing at the hearing on 7 March 2024. It does not appear that Mr Welner had filed a notice of ceasing to act.

14. In addition, it can be noted that at the hearing before Schmidt AJ Mr Van and Mr Harrison had been represented by counsel and Mr Welner.

15. Her Honour’s judgment also included information concerning the participation and evidence of Mr Van and Mr Harrison, as follows:

“6. What is not in issue includes that:

…

6. by the Court’s 8 December 2022 orders Mr Van and Mr Harrison were required to file and serve the evidence on which they wished to rely in the proceedings by 14 April 2023. They filed no evidence;

7. on 27 April 2023 Mr Wanis was given leave to file a motion seeking a separate determination of his claims against Mr Van and Mr Harrison and that day their solicitors advised that they would not be filing evidence in the proceedings;

8. Mr Van and Mr Harrison have not filed any cross-claim, despite having given “notice” in their November 2022 defence that they intended to make an application under the Contracts Review Act 1980 (NSW) in relation to the loan facility agreement, seeking a declaration that various of its provisions are void, as well as unspecified variations;

…

7. Mr Wanis indicated at the hearing of the motion that he would seek to put on a further short affidavit about the execution of the deeds of guarantee, Mr Van and Mr Harrison still not admitting that they had executed them.

8. There was no issue that unless Mr Van and Mr Harrison file and serve affidavit evidence in response to Mr Wanis’ further evidence, as they foreshadowed they might, determination of the dispute over their execution of the deeds of guarantee will depend on his evidence. Any inferences which can be drawn from the documents and the failure of Mr Van and Mr Harrison to give evidence, if that eventuates, will also be relevant to what lies in issue in relation to the deed of guarantee.”

16. In the circumstances outlined above and having regard to what had occurred before Schmidt AJ and what was contained in her Honour’s judgment, I was satisfied that Mr Van and Mr Harrison were aware of the terms of the notice of motion and of the fact that the remainder of the notice of motion had been listed for hearing on 7 March 2024. I was moreover satisfied that Mr Van and Mr Harrison had been afforded a reasonable opportunity to put on evidence and to be heard in respect of the remainder of the notice of motion but had chosen not to file any further evidence, including as to whether they had executed the Deeds of Guarantee, and had chosen not to appear at the hearing on 7 March 2024.

17. In this situation, proceeding to hear and determine the separate question and the remaining prayers in the notice of motion in their absence did not, in my view, involve any denial of procedural fairness to Mr Van or Mr Harrison.

What was not in issue

18. Before turning to consider the answer to the separate question and the consequential relief sought in the notice of motion, it is useful to record what was not in issue as a result of Mr Van’s and Mr Harrison’s defence and what was accepted as not in issue for the purposes of the notice of motion.

19. Mr Van’s and Mr Harrison’s defence contained a number of admissions including:

1. in par 6, “[Mr Wanis] as Lender and [Lifestyle] as Borrower and [Mr Van and Mr Harrison] as Guarantors entered into a Loan Agreement on 8 March 2019”;

2. in par 21, “if (which is not admitted) [Mr Van and Mr Harrison] signed Deeds of Guarantee, they did so by Deed dated 8 March 2019”; and

3. in par 23, “[Mr Wanis] advanced the sum of $150,000.00 to [Lifestyle] on or about [12 March 2019] in pursuance of the Loan Agreement”.

20. Furthermore, in Schmidt AJ’s judgment, from which there has been no appeal, her Honour recorded the parties’ agreement as to what was not relevantly in issue for the purposes of the notice motion as follows, at [6]:

“6. What is not in issue includes that:

1. in 2019 Mr Wanis and Lifestyle entered the loan facility agreement, under which he obtained a charge over the land to secure the loan and he later placed caveats over the property, after Lifestyle acquired it;

2. Mr Van and Mr Harrison are parties to that agreement as guarantors. That they then also each entered separate deeds of guarantee is not admitted;

3. the loan, which was due to be repaid by March 2020, was not repaid despite repeated representations by Mr Van that repayment was imminent;

4. the receiver was appointed to Lifestyle in September 2022 and Mr Wanis has been kept informed of steps being pursued to refinance and sell the property;

…

11. however the disputed agreements and deeds [including the Deeds of Guarantee] might be construed, or the agreements varied as to interest, Mr Wanis will at least be entitled to an order for repayment of the principal he advanced to Lifestyle.”

21. Furthermore in relation to point 11 in [6], Schmidt AJ also observed at [30], “[a]s was accepted for Mr Van and Mr Harrison, if they are bound by the deeds of guarantee, they will at least be liable for repayment of the principal advanced to Lifestyle, which was thereby guaranteed.” This was relevant not only because it would justify the giving of judgment for the unpaid principal, if it were found that Mr Van and Mr Harrison had executed the guarantees. It was also relevant because it meant that the separate questions could usefully be answered without determining the full extent of Mr Van’s and Mr Harrison’s liability under the guarantee which would turn on the validity and proper construction of the clauses relating to interest and possibly other matters in the Loan Agreement, under which the principal sum had been advanced.

The essential matter in issue and the evidence

22. Since it was not in issue that Mr Wanis had advanced $150,000 to Lifestyle and that, if Mr Van and Mr Harrison are bound by the Deeds of Guarantee, they will at least be liable for repayment of the principal advanced to Lifestyle, the essential matter in issue in relation to the remainder of the notice of motion is whether Mr Van and Mr Harrison executed, and thus became bound by, the Deeds of Guarantee.

23. In addition to the emails between the solicitors for the active parties establishing Mr Welner’s involvement until 28 February 2024 referred to above, the evidence was the affidavit each of Mr Wanis and Mr Christopher Chang affirmed 5 February 2023 and 2 May 2023 respectively.

24. The affidavit of Mr Chang provided background information in relation to the proceedings relating to the defendants other than Mr Van and Mr Harrison as well as to those named defendants and to the intention behind the present notice of motion.

25. Mr Wanis’s affidavit dealt more directly with the essential matter in issue on the remainder of the notice of motion. In the absence of any challenge to Mr Wanis’s evidence and since it is well supported by the documentation provided and is inherently credible, I accept the evidence in his affidavit.

Did Mr Van and Mr Harrison each execute a Deed of Guarantee?

26. Based on Mr Wanis’s evidence, my findings in relation to the loan transaction between Mr Wanis and Lifestyle and the Deeds of Guarantee are as set out in the following paragraphs.

27. On 15 January 2019, Mr Wanis was told about a potential investment opportunity by his financial planner, Mr Rene Ferris of Kings Road Wealth Management, involving an investment of $150,000 or $300,000 for 12 months and, whatever the amount, the “payout would be the same 50% interest”. Mr Ferris told Mr Wanis that his lawyer had reviewed the contract.

28. On 21 February 2019, Mr Ferris sent an email to Mr Wanis attaching four documents in relation to the proposed investment for Mr Wanis’s review: (1) “Main Loan Agreement”; (2) “Deed of Guarantee – Dave Harrison”; (3) “Deed of Guarantee – Peter Van”; and, (4) “GSA (General Security Agreement)”. The evidence did not include the actual documents themselves which were attached to that email.

29. On 6 March 2019, Mr Wanis sent an email to Mr Ferris stating “[a]s promised, signed versions from my side” and attached to that email were two Deeds of Guarantee, one Loan Agreement and one General Security Agreement. Once again the evidence did not include the actual documents themselves but Mr Wanis’s evidence was that he signed the documents he had received on 21 February 2019 without altering them and returned them to Mr Ferris by email on 6 March 2019.

30. On 7 March 2019 Mr Ferris sent an email to Mr Van stating “[p]lease see docs attached. All looks in order. If you can sign and [s]end back, we can make the transfer.” Based on the evidence as a whole, I infer that the documents which Mr Wanis had signed were attached to that email.

31. On 8 March 2019, Mr Van sent an email to Mr Ferris which stated, inter alia:

“As requested please find attached the executed documents.

I have emailed you previously the [relevant] Banking de[t]ails.

Could you please let me know once the transfer is complete and will [i]ssue a receipt.”

32. On 11 March 2019, Mr Ferris forwarded to Mr Wanis Mr Van’s 8 March 2019 email and said in the forwarding email:

“Please see attached all countersigned documents. Al[l] should be an order now. Please let me know once the transfer has been don[e] and I will get you a receipt as per below. … The bank details are as follows [the bank, account name, BSB and account number were set out] Amount: $150K”.

33. Attached to the 11 March 2019 email were documents identified as: “Deed of Guarantee PV – John – signed.PDF; Loan Agreement – John – Signed.pdf; GSA Millers Road Custodians – John copy – Signed.pdf; Deed of Guarantee DH – John – Signed.PDF”. These documents were all in evidence and I infer that these documents were the executed documents which Mr Van referred to in, and were attached to, his email of 8 March 2019.

34. I note that in par 6 of Mr Van’s and Mr Harrison’s defence, they admitted signing the Loan Agreement in relation to this transaction as guarantors on 8 March 2019. In addition, Mr Van and Mr Harrison admitted at par 16 of their defence that Mr Wanis and Lifestyle entered into the General Security Agreement on 8 March 2019.

35. Having regard to the evidence as a whole and the admission in par 6 of the defence, I am satisfied that the Loan Agreement attached to Mr Van’s email of 8 March 2019 and to Mr Ferris’s email of 11 March 2019, was the Loan Agreement executed on 8 March 2019 by, inter alios, Mr Van and Mr Harrison. Thus, there is a signature of each of Mr Van and Mr Harrison, which I am satisfied is authentic. The Deeds of Guarantee each contain a signature purporting to be that of Mr Van or Mr Harrison but each of them did not admit that they signed the relevant Deed of Guarantee.

36. It is well established that a court, when it is the tribunal of fact as in this case, may compare an impugned signature with a signature found to be authentic in order to determine whether the impugned signature is that of the person in question, even without the assistance of expert evidence: Singh v De Castro [2017] NSWCA 241 at [61] and footnote 25 (Sackville AJA, Macfarlane and Gleeson JJA agreeing) citing Adami v The Queen (1959) 108 CLR 605 at 616-7 (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ); [1959] HCA 70 and R v Hannes [2000] NSWCCA 503 at [323]-[325] (Spigelman CJ, Studdert J agreeing); and, Ye v Chen [2022] NSWSC 494 at [82] (Adamson J as her Honour then was).

37. Comparing the signatures of Mr Van and Mr Harrison on their respective Deed of Guarantee attached to the emails of 8 and 11 March 2019, with their signatures on the Loan Agreement executed by them on 8 March 2019, I am comfortably satisfied that:

1. the signature opposite the words “Signed sealed and delivered by PETER VAN” on p 18 of the relevant Deed of Guarantee is by the same person who signed the Loan Agreement opposite the words “SIGNED in my presence by the Guarantor PETER VAN” on p 34 of that document; and

2. the signature opposite the words “Signed sealed and delivered by Dale Harrison” on p 18 of the relevant Deed of Guarantee is by the same person who signed the Loan Agreement opposite the words “SIGNED in my presence by the Guarantor DALE HARRISON” on p 35 of that document.

38. In light of those findings and the evidence as a whole, I find that Mr Van and Mr Harrison executed their respective Deed of Guarantee and that this occurred at about the same as they each signed the Loan Agreement on 8 March 2019.

Other relevant factual matters

39. Noting the matters admitted in Mr Van’s and Mr Harrison’s defence, the matters that were agreed not to be in issue for the purposes of the notice of motion, and the evidence of Mr Wanis including the relevant documentation, my findings in relation to other relevant factual mattes are as follows:

1. All of the parties understood that the documentation in relation to the loan by Mr Wanis to Lifestyle included the Loan Agreement, the General Security Agreement and the Deeds of Guarantee.

2. Mr Wanis advanced the sum of $150,000.00 to Lifestyle on or about 12 March 2019 pursuant to the Loan Agreement to which Mr Van and Mr Harrison were also parties as guarantors and subject to the terms of the General Security Agreement and the Deeds of Guarantee.

3. The sum of $150,000.00 was, in accordance with the terms of cl 4 and item 5 of the schedule to the Loan Agreement and in the circumstances of the present case, due to be repaid by Lifestyle on or before 31 March 2020.

4. The sum of $150,000.00 was not repaid by Lifestyle on or before 31 March 2020 and it has not been subsequently repaid.

Consequences of the finding that Mr Van and Mr Harrison signed their deeds of guarantee

40. Against the background of my findings, the Court is first required to consider the answers that are to be given in relation to the questions ordered to be determined separately by Schmidt AJ, namely:

“a. Is the plaintiff entitled to a declaration that the second and third defendants (by reason of the Facility Agreement and General Security Agreement dated on or about 22 February 2019 and Deeds of Guarantee executed by each of them on 19 February 2019) are pursuant to that Deed of Guarantee jointly and severally liable to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Facility Agreement and General Security Agreement.

b. Is the plaintiff entitled to judgment with costs against the second and or third defendants jointly and severally in such amount that is owing to the plaintiff pursuant to the Facility Agreement, the General Security Agreement and the Deeds of Guarantee executed by the first and or second and third defendants on or about 19 February 2019.”

41. At the outset, it can be noted that the references to the relevant documentation in the form of questions adopted by Schmidt AJ raise two issues. First, the questions include references to “the Facility Agreement”. There was, however, no document disclosed on the evidence which was called a “Facility Agreement” but there was a “Loan Agreement”. Given what was not in dispute for the purposes of the determination of the notice of motion and in light of the evidence as a whole, I accept that the reference to “the Facility Agreement” in the questions should properly be understood as a reference to the Loan Agreement.

42. Secondly, the questions referred to the Facility Agreement (which is to be understood as a reference to the Loan Agreement) and the General Security Agreement being “dated on or about 22 February 2019” and the Deeds of Guarantee being executed by Mr Van and Mr Harrison “on 19 February 2019”. A review of the Loan Agreement, the General Security Agreement and the Deeds of Guarantee indicated that none of these documents was dated. Furthermore, the admissions made by Mr Van and Mr Harrison together with the emails referred to above establish that each of those documents was probably signed by the first, second and third defendants on 8 March 2019. Once again, given what was not in dispute for the purposes of the determination of the notice of motion and in light of the evidence as a whole, in my view the documents intended to be referred to in the questions were the Loan Agreement, the General Security Agreement and the Deeds of Guarantee actually signed by the parties in relation to the transaction in question and that the dates nominated in the questions were not intended to identify other, different documents. Accordingly, I shall proceed on the basis that the questions related to the Loan Agreement, the General Security Agreement and the Deeds of Guarantee signed by the relevant defendants on 8 March 2019.

Question (a)

43. For these reasons, question (a) is to be understood as asking in substance: Is Mr Wanis entitled to a declaration to the effect that, pursuant to the Deed of Guarantee executed by each of Mr Van and Mr Harrison, they are jointly and severally liable to Mr Wanis for the repayment by Lifestyle of all monies owing to Mr Wanis pursuant to the Loan Agreement and General Security Agreement?

44. The first aspect of question (a) which is to be addressed is whether, in the circumstances, Mr Wanless can be granted declaratory relief. It has been accepted that a party seeking a declaration must be able to secure a proper contradictor, someone presently existing who has a true interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438 (Gibbs J); [1972] HCA 61 citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 (Lord Dunedin). As has been noted above, Mr Van and Mr Harrison initially opposed the determination of the separate questions before Schmidt AJ and they each had a true interest in opposing the declaration sought but they did not appear at the hearing to determine the separate question.

45. This does not, however, constitute an obstacle in the present case to the making of a declaration as referred to in question (a). The requirement of a contradictor is satisfied if there is a party which has a true interest in opposing the declaratory relief claimed, even if that party does not actually oppose the relief being granted at the relevant time: Oil Basins Ltd v The Commonwealth (1993) 178 CLR 643 at 649‑650 (Dawson J); Unions NSW v New South Wales [2023] HCA 4 at [63] (Edelman J) and [90] (Steward J); Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 at [26] (Leeming JA, Bell CJ and Ward P agreeing).

46. There is no doubt that the Court has power to grant the declaratory relief. In this case, the declaration sought is not limited to the amount of the principal sum advanced by Mr Wanis to Lifestyle but covers the liability of Mr Van and Mr Harrison under the Deeds of Guarantee more generally. Nonetheless, the proposed declaration does not seek to determine the precise extent of the obligations guaranteed, which will depend on the proper construction and validity of clauses in the Loan Agreement. In these circumstances, there is a sufficient utility in making a declaration to the effect sought, if that is otherwise justified on the proper construction of the Deeds of Guarantee.

47. Turning to the Deeds of Guarantee executed by each of Mr Van and Mr Harrison, it can be noted that they are in relevantly identical terms. Each identifies Mr Wanis as the Lender and Mr Van or Mr Harrison, as appropriate, as the Guarantor. The recitals to each deed, under the heading “Background”, record:

“A. The Company [Lifestyle] will or has entered into the Contract [defined as “the Loan Agreement … between John Wanis as Lender and the Company as Borrower”] with the Lender

B. The Lender is desirous of protecting its interests under the Contract by obtaining satisfactory security from the Company and the Guarantor.

C. The Guarantor guarantees and indemnifies the Lender in respect of the faithful and continued performance by the Company of the Contract.”

48. Clauses 2 and 3 of each Deed of Guarantee include the following:

“2. Guarantee

2.1 Obligations guaranteed

The Guarantor unconditionally guarantees to the Lender:

(a) the faithful and continued performance by the Company under the Contract; and

(b) the due and punctual observance and performance by the Company of all its other liabilities, obligations and agreements (whether monetary or non-monetary, present or future, actual or contingent) to the Lender pursuant to or in connection with any agreement, security or instrument.

2.2 Result of non-payment

If the Company defaults in the due and punctual performance of any Obligation referred to in clause 2, the Guarantor must perform that Obligation. [“Obligation” is defined in cl 1.1 of the Contract as meaning “any legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability under each of the Contract”]

…

2.4 Continuing guarantee

This Guarantee is a continuing guarantee and remains in full force until the Company’s Obligations have been paid and performed in full.

…

3. Guarantor’s Obligations and their Enforcement

3.1 Principal obligations

The Guarantors Obligations are principal obligations and are not ancillary or collateral to any other right or obligation.

3.2 No requirement to proceed

The Lender is not required to proceed against the Company, exhaust any remedy it may have against the Company, or enforce any security it may hold with respect to the Company’s Obligations.

3.3 Preservation of the Guarantors Obligations

The Guarantors Obligations are absolute, unconditional and irrevocable …”.

49. The terms of cl 2.1 establish that the obligations guaranteed by each guarantor include:

1. not only the performance by Lifestyle of its obligations under the “Contract”, that is the Loan Agreement, as referred to in subcl (a);

2. but also “the due and punctual observance and performance by [Lifestyle] of all its other liabilities, obligations and agreements (whether monetary or non-monetary, present or future, actual or contingent) to [Mr Wanis] pursuant to or in connection with any agreement, security or instrument”, as referred to in subcl (b). On the proper construction of that subclause in the commercial context of the secured loan by Mr Wanis to Lifestyle as documented in the Loan Agreement, the General Security Agreement and the Deeds of Guarantee entered into by Mr Wanis with Lifestyle, Mr Van and Mr Harrison, those “other liabilities, obligations and agreements … to [Mr Wanis]” include any liabilities or obligations or agreements arising under the General Security Agreement between Mr Wanis and Lifestyle, which is part of the documentation of the transaction.

50. Each Deed of Guarantee also includes numerous clauses which seek to protect the interests of the Lender. None of these other clauses of the Deeds of Guarantee detracts from any of the obligations contained in cll 2 and 3. In addition, cl 6 includes an obligation on the Guarantor to indemnify the Lender “if the whole or any part of the Companies Obligations are not recoverable by the Lender from the Company for any reason whatever”. It is not, however, necessary to consider these other clauses in more detail for the purposes of answering question (a).

51. Given the provisions of each Deed of Guarantee and the circumstances of the present case, in my view, the obligations guaranteed by each of Mr Van and Mr Harrison include the repayment of the principal advanced by Mr Wanis to Lifestyle pursuant to the Loan Agreement and any other amounts which Lifestyle is liable to pay to Mr Wanis pursuant to the Loan Agreement, whatever on the proper construction of that agreement those other amounts might be. Further, the obligations guaranteed also include the obligations arising under the General Security Agreement between Mr Wanis and Lifestyle.

52. Since each of Mr Van and Mr Harrison has executed a separate deed of agreement but in identical terms in respect of the same obligations of Lifestyle, it appears to me that it can be said that they are both jointly and severally liable to Mr Wanis in respect of the obligations guaranteed under the Deeds of Guarantee.

53. Accordingly, the answer to question (a) (understood as set out above) is: Yes. In other words, Mr Wanis is entitled to a declaration to the effect that, pursuant to the Deed of Guarantee executed by each of Mr Van and Mr Harrision, they are jointly and severally liable to Mr Wanis for the repayment by Lifestyle of all monies owing to Mr Wanis pursuant to the Loan Agreement and the General Security Agreement.

Question (b)

54. The second part of the separate question relates to whether Mr Wanis is entitled to judgment against Mr Van and Mr Harrison. If the reference to “Facility Agreement” is understood in the same way as in question (a), question (b) asks in effect: Is Mr Wanis entitled to judgment with costs against Mr Van and Mr Harrison jointly and severally in such amount that is owing to Mr Wanis pursuant to the Loan Agreement, the General Security Agreement and the Deeds of Guarantee? Unlike question (a), question (b) does not ask whether Mr Wallace is entitled to a declaration that Mr Wanis is entitled to judgment but simply asks whether Mr Wanis is entitled to judgement. Notwithstanding this, prayer 2 seeks judgment “[i]f the answer to 1 above is yes and the Declarations in the form pleaded or substantially similar to the form pleaded are made”. The reference to “Declarations” (plural) suggests that question (b) may have been intended to ask whether Mr Wanis was entitled to a declaration that he was entitled to judgement. Nonetheless, I shall answer the question as asked.

55. For the reasons already given above, in my view, Mr Van and Mr Harrison are liable to Mr Wanis under cl 2.1(a) and (b) of the Deeds of Guarantee in respect of any amount for which Lifestyle would be liable as a result of any failure to comply with its obligations to Mr Wanis under either the Loan Agreement or the General Security Agreement, in accordance with the proper construction of the relevant clauses of those agreements which are found to be to valid and binding upon Lifestyle.

56. As to the issue of costs raised in question (b), cl 7.4 of the Deeds of Guarantee relevantly states:

“7.4 Costs and expenses

In addition to all other liabilities of the Guarantor under this Guarantee, the Guarantor must also pay to the Lender immediately on demand all costs and expenses (including legal and out-of-pocket expenses) which may be incurred in, or in connection with … the exercise … of any right, authority or remedy conferred on the Lender under or by virtue of this Guarantee …”.

57. Given the terms of cl 7.4, in my view Mr Wanis would be entitled at least to an order for costs in his favour in any proceedings seeking relief under the Deed of Guarantee against Mr Van and Mr Harrison.

58. It is not possible to determine the full extent of the liability of Mr Van and Mr Harrison to Mr Wanis under the Deeds of Guarantee until any live issues concerning the validity or construction of the clauses in the Loan Agreement or General Security Agreement are determined in the principal proceedings. In these circumstances, in my view, it is appropriate to answer the question concerning Mr Wanis’s entitlement to judgment against Mr Van and Mr Harrison under the Deeds of Guarantee without attempting to quantify the extent of any such judgment.

59. Accordingly, I answer question (b) (understood as set out above): Yes. In other words, Mr Wanis is entitled judgment with costs against Mr Van and Mr Harrison, jointly and severally, in such amount as is found to be owing to Mr Wanis by Lifestyle pursuant to the Loan Agreement and the General Security Agreement.

Consequential relief sought in the notice of motion

60. Prayers 2 and 3 of the notice of motion sought in effect that, if the declarations effectively sought in prayer 1 are made, there be judgment for Mr Wanis against Mr Van and Mr Harrison for such amount as the Court determined.

61. There are, however, issues which are not to be determined on the present notice of motion including, for example, the validity and construction of cll 4, 5 and 10 of the Loan Agreement and item 6 in the Schedule of the Loan Agreement, which relate to the payment and calculation of interest. Determination of issues such as these will be necessary before the full extent of Mr Van’s and Mr Harrison’s liability under the Deeds of Guarantee can be determined.

62. As was noted by Schmidt AJ at [30], however, Mr Van and Mr Harrison accepted that, if they were bound by the Deeds of Guarantee, they would at least be liable for repayment of the principal advanced to Lifestyle, which was thereby guaranteed. I have found that they were each bound by their Deed of Guaranteed and there was also no dispute that the principal of $150,000.00 was advanced by Mr Wanis. That amount has not been repaid to Mr Wanis by Lifestyle or by anyone else.

63. In light of my conclusions above, the circumstances established on the evidence and the accepted basis on which the notice of motion was to be determined, it is appropriate to make the declarations sought and to order judgment for Mr Wanis against Mr Van and Mr Harrison in the sum of $150,000.00, without prejudice to Mr Wanis’s right to seek to recover further amounts from the two guarantors should he be successful in establishing that they are liable for those further amounts under the Deeds of Guarantee.

Costs

64. Prayer 4 seeks that Mr Van and Mr Harrison be ordered to pay the costs of the notice motion.

65. Schmidt AJ has already made order (2) on 5 September 2023 that Mr Van and Mr Harrison are to bear Mr Wanis’s costs of the motion, as agreed or assessed. Notwithstanding its terms, I understand this order to relate to the costs of the notice of motion in so far as it was dealt with by her Honour. As to the costs of hearing before me and any other aspects of the notice of motion not dealt with by Schmidt AJ, there do not appear to me to be any circumstances that would justify an order other than that costs should follow the event. Furthermore, the terms of cl 7.4 of the Deeds of Guarantee noted above indicate that an order that the guarantors, Mr Van and Mr Harrison, pay the costs of the notice of motion seeking to enforce, in part, their guarantees would be appropriate.

Orders

66. Accordingly, the Court makes orders as follows:

1. The answer to question (a), Is the plaintiff entitled to a declaration to the effect that, pursuant to the Deeds of Guarantee executed by each of the second and third defendants, they are jointly and severally liable to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Loan Agreement and the General Security Agreement? is: Yes.

2. The answer to question (b), Is the plaintiff entitled to judgment with costs against the second defendant and the third defendant, jointly and severally, pursuant to the Deeds of Guarantee executed by each of the second and third defendants for such amount as is owing to the plaintiff by the first defendant pursuant to the Loan Agreement or the General Security Agreement? is: Yes.

3. A declaration that, pursuant to the Deed of Guarantee executed by the second defendant on 8 March 2019 and the Deed of Guarantee executed by third defendant on 8 March 2019, each of those defendants is liable, jointly and severally with the other, to the plaintiff for the repayment by the first defendant of all monies owing to the plaintiff pursuant to the Loan Agreement executed on 8 March 2019 and the General Security Agreement executed on 8 March 2019.

4. Judgment for the plaintiff against the second and third defendants, jointly and severally, in sum of $150,000.00.

5. Order (4) is without prejudice to the plaintiff’s rights to claim further sums from the second and third defendants under the Deeds of Guarantee executed by each of the second and third defendants on 8 March 2019 in respect of other liabilities or obligations of the first defendant under the Loan Agreement executed on 8 March 2019 and the General Security Agreement executed on 8 March 2019 in addition to the liability to repay the principal sum advanced of $150,000.00.

6. The second and third defendants are to pay the plaintiff’s costs of the notice of motion dated 2 May 2023 in addition to the costs already ordered to be paid by Schmidt AJ by order (2) made on 5 September 2023.

7. Otherwise, the notice of motion dated 2 May 2023 is dismissed.

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Endnote

Decision last updated: 27 September 2024