WK Marble and Granite Pty Ltd v JKE Holdings Pty Ltd

WK Marble and Granite Pty Ltd, the plaintiff, brought an action against JKE Holdings Pty Ltd, the second defendant, to recover a sum of money owed under a contract for the supply of marble. The dispute arose when the second defendant's director, Mrs. Kim, signed a personal guarantee for the payment of the debt owed by her company. Mrs. Kim argued that the guarantee was non est factum, claiming that she had signed a document without understanding its contents or effect. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue for the court to determine was whether Mrs. Kim's signature on the guarantee was valid and binding, given her claim that she did not understand the document. The court needed to consider whether the Contracts Review Act applied and whether there was any unfair conduct by the plaintiff in procuring the guarantee. A secondary issue was whether Mrs. Kim had received independent legal advice regarding the guarantee before signing it.

The court held that Mrs. Kim's argument under the non est factum doctrine failed because there was no evidence of unfair conduct by the plaintiff. The court found that Mrs. Kim had the opportunity to seek independent legal advice but chose not to do so. Furthermore, the court observed that the guarantee was a straightforward document, and Mrs. Kim had sufficient literacy to understand its effect. Consequently, the court ruled that the guarantee was valid, and Mrs. Kim was liable for the debt owed by her company. The court also dismissed the cross-claim and reserved the question of costs pending further submissions.