Woods v Bank of Western Australia
[2000] WASCA 3
•21 JANUARY 2000
WOODS -v- BANK OF WESTERN AUSTRALIA [2000] WASCA 3
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 3 | |
| 21/01/2000 | |||
| Case No: | FUL:45/1999 | 12 NOVEMBER 1999 | |
| Coram: | IPP J WALLWORK J MURRAY J | 12/11/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JOHN ROBERT WOODS BANK OF WESTERN AUSTRALIA |
Catchwords: | Contract Appeal against summary judgment for the respondent under O 14 r 3(1) Respondent claimed money owing under deed of guarantee and credit card agreement signed by appellant Whether appellant liable under the agreements for money advanced by the respondent Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 O 14 r 3(1) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WOODS -v- BANK OF WESTERN AUSTRALIA [2000] WASCA 3 CORAM : IPP J
- WALLWORK J
MURRAY J
- Appellant
AND
BANK OF WESTERN AUSTRALIA
Respondent
Catchwords:
Contract - Appeal against summary judgment for the respondent under O 14 r 3(1) - Respondent claimed money owing under deed of guarantee and credit card agreement signed by appellant - Whether appellant liable under the agreements for money advanced by the respondent - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 O 14 r 3(1)
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr R J Prentice
Respondent : Mr R J Nash
Solicitors:
Appellant : Mossensons
Respondent : LMU Legal & Litigation
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 IPP J: The respondent instituted an action against the appellant in the District Court, claiming on two causes of action.
2 The first cause of action was based on a deed of guarantee ("the Guarantee") signed by the appellant on 26 April 1994 whereby the appellant and another jointly and severally guaranteed to the respondent repayment, in effect, of all moneys which Studioline Holdings Pty Ltd ("Studioline"), at the date of the Guarantee or at any time in the future, owed the respondent. According to the statement of claim, the respondent had advanced funds to Studioline on overdraft, of which $36,201.66 was due and owing. The respondent averred that the appellant was obliged under the Guarantee to pay the respondent the said sum of $36,201.66 which the appellant had failed to do.
3 The second cause of action concerned a written agreement dated 9 September 1994 ("the Credit Card Agreement") between the respondent as lender and the appellant as borrower, whereby, it was alleged, the respondent agreed to provide a credit card facility to the appellant. According to the statement of claim, $15,589.51 was owing by the appellant to the respondent in consequence of credit provided by the respondent to the appellant pursuant to this agreement.
4 The appellant entered an appearance to defend the action so instituted against him, and the respondent applied for summary judgment pursuant to O 14 r 3(1) of the Supreme Court Rules. The Deputy Registrar of the District Court dismissed the respondent's application and the respondent appealed. The appeal was heard by a Commissioner of the District Court. The learned Commissioner was of the view that the respondent should have been granted summary judgment in relation to both causes of action set out in its statement of claim. His Honour granted orders accordingly.
5 The appellant appealed to this Court against the decision of the learned Commissioner. At the conclusion of argument on appeal, the Court was unanimously of the opinion that the appeal should be dismissed, and orders were made accordingly. The Court indicated that reasons for its decision would be delivered later, and I set out below my reasons for joining in that decision.
6 I turn first to the cause of action based on the Guarantee. Counsel for the appellant raised only one argument in support of the submission that summary judgment had wrongly been granted in respect of this cause of action. This argument was founded upon a document (to which I shall
(Page 4)
- refer as the "Upstamping Document") signed by the appellant, addressed to the respondent, and which was in the following terms:
"Borrowing Customer: Studioline Holdings Pty Ltd
As guarantor of the above customer, I acknowledge notice from the Bank of Western Australia Ltd that the Joint and Several Guarantee and Indemnity dated 26 April 1994 executed by myself is to be upstamped to secure advances to the above customer to a total of $60,000 and further acknowledge this notice is not to act as a waiver of the Bank's right under the said Joint and Several Guarantee and Indemnity to make further advances at any time to the customer without notice or to limit my/our liability under the said Joint and Several Guarantee and Indemnity."
The "Joint and Several Guarantee and Indemnity" to which reference was made is the Guarantee.
7 As mentioned, the Guarantee was signed by the appellant on 26 April 1994. On 2 May 1994 it was stamped to secure the sum of $10,000. On 1 May 1995 the respondent and Studioline entered into the overdraft agreement pursuant to which the claimed sum of $36,201.66 was advanced. The Guarantee was upstamped by $50,000 two days later.
8 Counsel for the appellant submitted that this sequence of events indicated that the Guarantee signed on 26 April 1994 was not intended to apply to the overdraft agreement entered into on 1 May 1995. Further, counsel drew attention to cl 8 of the overdraft agreement which provided that "the security for the overdraft … will be … Joint and Several Guarantee from [the appellant] and [Ms Cohen]". It was submitted that, as a new guarantee was required, cl 8 had not been complied with. I should say that I have difficulty in understanding how this part of the argument assists the appellant, but I mention it for the sake of completeness.
9 In my opinion, there is no substance in the submission that the Guarantee was not intended to apply to the overdraft agreement. The Guarantee was "open"; that is, by its terms the appellant guaranteed to the respondent:
"upon demand in writing … at any time and from time to time the due and punctual payment or repayment by [Studioline] of
(Page 5)
- all or any part of the secured Moneys and performance by [Studioline] of the Secured Obligations."
- It was not in dispute that the moneys claimed in respect of the first cause of action were "Secured Moneys" as defined and the obligation of Studioline to pay those moneys was a "Secured Obligation" within the meaning of those terms in the Guarantee. On the face of the Guarantee, therefore, it applied to the overdraft agreement.
10 The Upstamping Document does not displace the effect of the Guarantee and does not suggest that a new guarantee was to be entered into. It merely records an acknowledgment by the appellant that the Guarantee will be "upstamped to secure advances to [Studioline] to a total of $60,000". The fact that the Guarantee was initially stamped to secure only $10,000 does not mean that the security afforded thereby was limited to that sum. The stamping had no effect on the obligations the appellant owed to the respondent thereunder. The stamping to secure $60,000 was required to satisfy the provisions of the relevant statutory regime relating to stamp duty, but this had no effect on the terms of the Guarantee itself.
11 In my view, no inference of the kind relied on by the appellant could be drawn from the Upstamping Document. That being so, the respondent was entitled to rely on the Guarantee and the appellant's argument failed.
12 As regards the second cause of action, the appellant submitted that the evidence showed that the Credit Card Agreement was entered into between the respondent and the appellant's employer, and not the respondent and the appellant. It was submitted that the application for a credit card had been made by the appellant as an agent for his employer and not personally. It was submitted that it followed that the appellant was not personally liable for the credit advanced pursuant to the Credit Card Agreement.
13 A material part of the Credit Card Agreement consisted of a written application for a credit card signed by the appellant. The application form made it quite plain that the application was being made by the appellant personally, and the Credit Card Agreement was to be between the respondent and the appellant personally. In the application form the applicant for the credit card was identified as the appellant personally, his residential address was given and the relevant information in the application (concerning the creditworthiness of the applicant) related to the appellant personally. The application form concluded:
(Page 6)
- "I acknowledge that if my application is accepted, this form will operate as a request by me to the [respondent] to issue me or any authorised additional cardholder with [a credit card] on the terms and conditions to be advised.
I further acknowledge that if my application is accepted I will be issued with a Personal Identification Number to enable me to access the [appellant's] electronic networks … "
- The appellant then signed the application in his own right without any indication on his part that he was signing on behalf of his employer.
14 The application was dated 7 September 1994. In a letter which the learned Commissioner accepted accompanied the application (or at least was considered with the application before the credit card was approved) the appellant stated:
"I request that you issue me with a credit card in my name and also embossed with the business name J & M ADVERTISING.
This application is made for business purposes at the request of my employer who has given the appropriate authority to [the appellant]. I acknowledge however that as this application is in my name I could be called upon to repay the amount owing in the event of insolvency."
15 It was suggested that it was arguable that this letter indicated that the appellant was applying for a credit card in the name of the entity that traded under the name J & M Advertising. In my view, however, the terms of the application, read with the letter, unambiguously show that the applicant was the appellant personally and he was accepting personal liability for credit advanced in respect of the credit card to be issued. The letter of 7 September 1994 was merely a request that the credit card to be issued in the appellant's name also be embossed with the business name "J & M Advertising". This request had no effect on the other matters to which I have referred which plainly show that the appellant was to be liable for the credit to be provided.
16 In the circumstances, I consider that the argument advanced on the appellant's behalf in regard to the second cause of action could not be upheld.
17 WALLWORK J: I agree with the reasons for judgment of Ipp J. There is nothing I wish to add.
(Page 7)
18 MURRAY J: I also agree with the reasons of Ipp J and have nothing to add.
0
1