Wesfarmers General Insurance Ltd v Doan

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

WESFARMERS GENERAL INSURANCE LTD v DOAN

[2015] SADC 102

Judgment of His Honour Chief Judge Muecke

29 June 2015

GUARANTEE AND INDEMNITY

Plaintiff, an insurer, carried out business as a Home Warranty Insurer pursuant to the provisions of the Building Work Contractors Act 1995 (SA). A Building Owner's Home Warranty Insurance Policy written by the insurer with the Builder and his wife signing a Deed of Guarantee and Indemnity. Insurer paid out a claim under the Policy. Claim by the insurer against the wife under the Deed of Guarantee and Indemnity. Defendant wife raised defences of Garcia unconscionability and non est factum.

Held: Plaintiff's claim proved. Defences not proved. Judgment for the Plaintiff.

Petelin v Cullen (1975) 132 CLR 355; Garcia v National Australia Bank Ltd (1998) 194 CLR 395, considered.

WESFARMERS GENERAL INSURANCE LTD v DOAN
[2015] SADC 102

Introduction and background

1. Thi Tuyet Nga Doan was born in Vietnam on 8 December 1963. She attended school in Vietnam. She left school around year 7 or year 8 in that country. She said her education was disrupted by the war in Vietnam.

2. I have just referred to her as Thi Tuyet Nga Doan. Her name, and in particular the order of her names, became important in the trial. She said that her first ‘Christian name’ was Nga and she was sometimes called Nga Thi Tuyet Doan. She is also referred to as being otherwise known as ‘Kym Doan’ or ‘Kim Doan’. There was also evidence at the trial that Vietnamese people sometimes write their various names in different orders, particularly using their ‘surname’ or ‘family’ name first, followed by their ‘Christian’ names. The evidence to which I have just referred became important in this case, particularly in the context of initials.

3. In the case of Thi Tuyet Nga Doan, it seems certain that ‘Doan’ is her surname or her family name. It also seems certain that ‘Thi Tuyet Nga’ are her Christian names or her given names. It seems probable that she, at least in Australia, more usually used the name ‘Nga’ as her first Christian or given name.

4. In this judgment I refer to her as ‘Ms Doan’.

5. Ms Doan came to Australia in early 1984. The visa for her to travel to Australia was issued in Bangkok, Thailand on 27 January 1984. She said that she spent two years in a refugee camp in Thailand before arriving in Australia. She probably entered this country on 9 February 1984, or thereabouts. She was authorised to stay in this country indefinitely. She was 21 years old when she arrived in Australia.

6. Ms Doan lived in Sydney for four years. She married in Sydney in 1985 and had two children there. When in Sydney she worked as a beautician. She started a beautician course in Sydney and started working for herself there in 1995. She said that she worked from home because she had two children. Her son had been born in…