Tait-Jamieson v Cardrona Ski Resort Ltd HC Invercargill CIV-2010-425-000181
[2011] NZHC 969
•16 August 2011
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IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV-2010-425-000181
UNDER the District Courts Act 1947
IN THE MATTER OF an appeal against the Judgment of the
District Court at Queenstown in CIV-2008-
059-000151 given on 23 March 2010
BETWEEN PETER JOHN TAIT-JAMIESON Appellant
ANDCARDRONA SKI RESORT LIMITED Respondent
Hearing: 30 August 2010
3 February 2011 by telephone and further submissions
Appearances: M Colthart for Appellant
F B Barton and A M Cunninghame for Respondent
Judgment: 16 August 2011
RESERVED JUDGMENT OF HON JUSTICE FRENCH
Introduction
[1] Section 2 of the Contracts Enforcement Act 1956 provides that a contract of guarantee shall not be enforceable unless it is in writing and signed by the guarantor
or by the guarantor’s authorised agent.
TAIT-JAMIESON V CARDRONA SKI RESORT LIMITED HC INV CIV-2010-425-000181 16 August 2011
[2] In this appeal, the document relied upon as constituting a contract of guarantee was not signed by the guarantor, and the issue is whether the District Court Judge was correct to enforce the guarantee notwithstanding the absence of a
signature. More particularly, the issues are:
Whether the Judge was right to rely on the authenticated signature
fiction to overcome the absence of a signature.
If not, whether the decision can nevertheless be justified on the basis
of the doctrine of part performance or estoppel.
Whether the respondent is entitled to rely on the doctrine of part performance or estoppel when neither was pleaded nor argued at the
hearing before the District Court Judge.
What is the correct construction of the terms of the guarantee – in
particular, was it subject to a time limitation?
Factual background
[3] None of the Judge’s findings of fact has been challenged on appeal, and accordingly the following narrative incorporates those findings without identifying which facts were in dispute.
[4] Cardrona Ski Resort Limited owns and operates a ski resort near Wanaka. In addition to providing facilities for recreational skiers, Cardrona has also established a High Performance Centre. The Centre is designed to meet the training and coaching needs of elite winter sports athletes.
[5] From 2001 to 2006 an organisation called Central Lakes Ski Racing Incorporated (or its predecessor) offered scholarships to young athletes to enable them to attend the Centre. Cardrona invoiced Central Lakes for the cost of the ski
training, Central Lakes obtaining the necessary funding from charitable foundations, any shortfall being met by the athletes themselves or their parents.
[6] Until 2007 there had never been any problem with payment of the training costs. However, at the commencement of the 2007 season, Cardrona learnt that Central Lakes was experiencing difficulties obtaining its usual funding. It was not possible to delay the 2007 coaching programme. Accordingly, Cardrona agreed to provide the services to the athletes, but only on the proviso that Central Lakes would pay invoices as they fell due.
[7] By the end of July 2007, no funding had materialised. That meant the entire training programme was in jeopardy. This was of real concern to the appellant, Mr Tait-Jamieson. Although Mr Tait-Jamieson was not himself a member of Central Lakes, his family was a major beneficiary of it for the 2007 season. Central Lakes had awarded scholarships (subject to confirmation of its funding application) to 21 athletes, including his four children. As at the end of July 2007, the children were already three or four weeks into the programme. Skiing was a significant part of their lives, the Tait-Jamieson children having moved from Auckland to Wanaka for the season to train full-time, with special arrangements having been made for their education.
[8] In late July 2007 Mr Tait-Jamieson met with three other concerned ski enthusiasts to see what could be done to rescue the training programme.
[9] The upshot of the meeting was that Mr Tait-Jamieson, a Mr Smith and a Mr Winsloe agreed to guarantee Central Lakes’ liability to Cardrona should the charitable trust funding not eventuate. Mr Tait-Jamieson agreed to guarantee
$83,000 and the other two $6,000 each.
[10] After the meeting, Mr Smith prepared the following document which he circulated to Mr Tait-Jamieson and Mr Winsloe:
31 July 2007
Cardrona Ski Resort
Wanaka
By Hand
Dear Sir/Madam
Re : Central Lakes athlete funding – undertaking
Central Lakes Ski Racing Inc (CLSR) has arrangements to pay for a number of athletes training at the Cardrona High Performance Centre (CHPC).
CLSR has applied for funding from a charitable trust – which funding as at the date of this letter has not been confirmed and which may or may not arrive.
CHPC wishes to have certainty as to payment of funds for CLSR athletes in its programme.
It is understood the amounts to be paid by CLSR to CHPC are:
$78,000 re athlete funding
$12,000 tidy over payment for a coach between seasons
$ 4,000 odd re Physio matters
$95,000 (total – rounded up)
The undersigned parties undertake payment of the sums shown against each to CHPC in the event the charitable funding for CLSR does not arrive by 30
September 2007.
The parties agree if called upon to pay up to the maximum of the amount shown:
Peter Tait-Jamieson $83,000
Grant Winsloe and Ian Smith $12,000 – to be 50% each ($6,000 each).
$95,000
Signed by the above parties to signify undertaking to pay above amounts in the first week of October 2007 if called upon to do so on or before 30
September 2007.
In the event CLSR charitable funding comes through prior to 30 September
2007 the above undertakings are automatically voided. Signed by:
Peter Tait-Jamieson Grant Winsloe Ian Smith
[11] It is this document which the Judge found constituted an enforceable guarantee.
[12] Mr Tait-Jamieson did not ever sign the document, but nor did he ever communicate any concerns about its content to Mr Smith, or for that matter to Cardrona.
[13] The only person who did sign the document was Mr Winsloe. Having signed it, he delivered it to Cardrona’s snow sports manager who in turn handed the letter to the company’s finance administration manager and the general manager.
[14] According to the evidence of the general manager:1
12.Although the agreement was not in the form of Cardrona’s usual terms and conditions where services are advanced on credit, I was prepared to accept the agreement on its terms. Cardrona has had a professional relationship with Mr Winsloe for some years, through his snow sports equipment retail business, and he and his family are very active in ski racing training. I would not extend credit, especially to such a significant extent, unless I relied on the agreement and its signatories.
[15] The exact date on which Mr Winsloe delivered the document to Cardrona is unknown but likely to be early August 2007.
[16] Between September and November 2007 Cardrona sent invoices to Central
Lakes for the cost of the High Performance Centre. The invoices total $82,738.16.
[17] Mr Tait-Jamieson became aware Cardrona was in possession of the 31 July
2007 document by late November/early December 2007.
[18] On 8 December 2007, Mr Winsloe advised Cardrona that Central Lakes had not received the charitable funding.
[19] Then followed a series of communications between Cardrona and Mr Tait-Jamieson, in the course of which Mr Tait-Jamieson confirmed his commitment to underwrite the Central Lakes’ debt, sought an extension of time so as not to prejudice re-applications for funding for both the 2007 and 2008 seasons, and offered of his own volition to pay interest in the meantime.
[20] No payments were however forthcoming, and in mid-2008 Cardrona issued proceedings against Messrs Tait-Jamieson, Smith and Winsloe.
[21] Mr Winsloe met what Cardrona considered his obligation under the guarantee shortly after proceedings were served on him. Cardrona discontinued proceedings against Mr Smith on the morning of the hearing and proceeded solely against Mr Tait-Jamieson.
[22] In defending the claim, Mr Tait-Jamieson contended inter alia that if the document did constitute a guarantee, it was not enforceable against him because he had never signed it. He also argued that in any event, the document was worded so as to make any liability conditional on his being called upon to pay the debt on or before 30 September 2007, which Cardrona had not done.
The District Court decision
[23] The Judge found that the document of 31 July 2007 recorded an agreement which in substance was a guarantee of Central Lakes’ obligations to Cardrona, and that for the purposes of s 2 of the Contracts Enforcement Act, the document was a sufficient note or memorandum of the guarantee contract.
[24] The Judge then turned to the issue of a signature.
[25] He found that Mr Winsloe did not have any authority, either actual or ostensible, to sign on behalf of Mr Tait-Jamieson. That meant Cardrona could not rely on Mr Winsloe’s signature as being the signature of Mr Tait-Jamieson’s agent.
[26] However, while the Judge held that Cardrona could not rely on Mr Winsloe’s
signature, he held it could rely on the authenticated signature fiction doctrine.
[27] That doctrine provides that if certain requirements are met, the written, printed or typed name of a party appearing in the writing as some part of its substance (for example in the space for the name of the party) can be held to be the signature of that party. The fiction is that the party has authenticated that expression
of their name as their signature for the purpose of further authenticating the writing of which it forms part.
[28] Following TA Dellaca Ltd v PDL Industries Ltd, the Judge identified the three essential features of the authenticated signature fiction as being:2
a) the contract or memorandum must have been prepared by the party sought to be charged or by an authorised agent and have the party’s name printed or written on it;
b)it must be handed or sent by that party or the agent to the other party for signature; and
c) it must be shown, either from the form of the document or the surrounding circumstances, that it was not intended to be signed by anyone other than the party to whom it is sent and that, when signed by that party, it is to constitute a complete and binding contract between the parties.
[29] Applying those requirements to the facts, the Judge continued:
[42] In the present case, Mr Smith prepared the 31 July 2007 document following discussions between Mr Smith, Mr Winsloe, Mr Duff and Mr Tait-Jamieson. I infer from that fact that Mr Smith prepared the document following discussions between those persons and that Mr Smith was acting as the agent of Mr Tait-Jamieson and the others in the preparation of the document. Mr Tait-Jamieson’s name was printed on the document.
[43] The document was circulated to the other parties to it. Despite Mr Tait-Jamieson’s evidence that it did not record what he had understood, he did nothing. Mr Winsloe delivered the document to Cardrona, to whom it was addressed, some time following it being circulated to Mr Tait-Jamieson and the others. It is not necessary for Cardrona to sign the document. Mr Veall was willing to accept the proposal contained within the document. He had dealt with Mr Winsloe in the past and believed that nothing further was required.
[44] The above factors satisfy the requirements for application of the authenticated signature fiction. Moreover, Mr Tait-Jamieson’s subsequent conduct… support the view that he considered he had an obligation to pay the Central Lakes’ debt to Cardrona.
[30] As regards the argument that the guarantee was limited in time, the Judge had this to say:
[45] The contract of guarantee provides that it is “signed by the above parties to signify undertaking to pay... in the first week of October 2007 if called upon to do so on or before 30 September 2007”. Counsel for Cardrona submits the reference to 30 September must be a mistake because funding would not have become available by that date and Cardrona was continuing to provide services past 30 September. Whilst not conceding that there was agreement at all let alone an enforceable contract of guarantee, counsel for Mr Tait-Jamieson submits that there was no call on the guarantee before 30 September 2007. Hence, Mr Colthart submits the guarantee is unenforceable.
[46] Cardrona did not make demand for payment on or before 30
September 2007. That was hardly surprising because Central Lakes was still endeavouring to obtain funding and Cardrona was still providing services.
The contract records an “undertaking to pay (emphasis added) the specified
sums in the first week of October if called upon to do so on or before 30
September 2007”. The terms of the agreement do not mean that the parties
to it are released from liability should they not be called upon to pay on or before 30 September 2007.
[47] If there is any ambiguity in the above phrase it should be interpreted against Messrs Winsloe, Smith and Tait-Jamieson who were involved in its preparation and provided the document to Cardrona.
[48] Support for the view that the contract specifies only the date of payment if the guarantors were called upon to pay on or before 30
September 2007 comes from what happened subsequently.
Mr Tait-Jamieson assured Mrs Traynor on 18 December 2007 that he would make payment. He sought more time because efforts were still being made to obtain funding. Mr Tait-Jamieson told her that if he made payment then Central Lakes could not obtain funding. For the reasons outlined above, Mr Tait-Jamieson still considered that he had a liability to Cardrona for the Central Lakes’ debt notwithstanding that he had not been called upon to pay on or before 30 September 2007.
The authenticated signature fiction
The competing arguments on appeal
[31] It was common ground that the Judge had correctly identified the three requirements or features of the authenticated signature fiction doctrine, namely:
i)The document must have been prepared by Mr Tait-Jamieson or his authorised agent and have his name printed or written on it.
ii)It must have been handed or sent by Mr Tait-Jamieson or his agent to Cardrona for signature.
iii)It must be shown either from the form of the document or the surrounding circumstances that it was not intended to be signed by anyone other than Cardrona, and that when signed by Cardrona it was to constitute a complete and binding contract between the parties.
[32] While no issue is taken with the Judge’s summary of the relevant legal principles, counsel for Mr Tait-Jamieson contends the Judge erred in his application of those principles to the evidence, in that:
a) There was no evidential basis for a finding the document was prepared by Mr Smith acting as Mr Tait-Jamieson’s agent.
b) The Judge failed to address the second requirement.
c) The third element was entirely lacking, the evidence establishing that the document was never signed by Cardrona.
[33] For his part, counsel for Cardrona, Mr Barton, submits there was ample evidence from which the Judge could have inferred Messrs Smith and Winsloe were acting as Mr Tait-Jamieson’s agents in the preparation of the document. As regards the fact that Cardrona never signed the document, Mr Barton argued the third requirement does not apply in a situation where the party to whom the document is delivered adopts and embraces the contract as Cardrona did in this case. In Mr Barton’s submission, Dellaca is distinguishable because it involved an exchange of drafts, whereas in this case the document at issue did not have a space for Cardrona to sign.
Discussion
[34] In my view, the finding Mr Smith had ostensible authority to prepare the document was an inference which the Judge was entitled to draw from the evidence
and it is a finding with which I would not be willing to interfere. As the Judge noted, Mr Smith prepared the document immediately after the meeting and circulated it. Mr Tait-Jamieson is a person with some legal training and business experience. He received the draft without demur and raised no objection to its content. The document was addressed to Cardrona and had his name printed on it.
[35] I therefore accept that the first requirement is satisfied.
[36] The Judge’s treatment of the other two requirements is, however, more
problematic.
[37] The second element required him to be satisfied that Mr Winsloe was authorised by Mr Tait-Jamieson to deliver the document to Cardrona. There is, however, no specific finding to that effect, which is particularly unfortunate given the Judge’s earlier finding that Mr Winsloe was not Mr Tait-Jamieson’s agent for the purpose of signing the document, and his finding that Mr Tait-Jamieson only became aware in November or December that the document had been delivered. Notwithstanding Mr Barton’s submissions to the contrary, there is arguably in my view an inconsistency between (apparently) finding Mr Winsloe was an agent for one purpose but not the other when the two actions (signing and delivery) were so inter-related. Unfortunately, the Judge does not explain the apparent contradiction.
[38] I am also troubled by the Judge’s approach to the third requirement. The Judge’s statement that it was not necessary for Cardrona to sign the document does in effect dispense with the third requirement. Counsel were unable to find any authority which has applied the fiction in circumstances where neither party has signed the document. Significantly, the formulation of the doctrine which Tipping J approved in Dellaca commences with the statement that the doctrine applies “if, but
only if” the three conditions are established.3
[39] The Judge was understandably concerned to achieve a just result. However in my view, in doing so he has strained the authenticated signature fiction beyond its proper boundaries.
[40] I am reinforced in that conclusion by a further consideration. According to McMorland,4 it is “fundamental” to authenticated signature fictions that there must have been an oral agreement between the parties on the essential terms of their deal before delivery of the document takes place. That is said to be a requirement in addition to the three Dellaca requirements. In this case, however, there was no prior oral agreement between Mr Tait-Jamieson and Cardrona.
Part performance and estoppel
[41] Having come to the view the decision was not sustainable on the basis of the authenticated signature fiction, I raised with counsel the possibility of it being sustainable on the basis of part performance, and called for further submissions. Counsel were also given another opportunity to make additional submissions on the issue of estoppel.
[42] Cardrona did not ever raise the issue of part performance or estoppel in its pleadings (by way of a reply), nor was part performance or estoppel ever argued at the District Court hearing. In those circumstances, Mr Colthart contended it was too late and that I should not grant Cardrona leave to raise these issues now. Mr Colthart further submitted that in any event, as a matter of law, the doctrine of part performance, and by implication estoppel, does not apply to contracts of guarantee.
As a matter of law, can the doctrines of part performance and estoppel apply to contracts of guarantee?
[43] Section 2(3)(c) of the Contracts Enforcement Act provides that nothing in s 2 shall affect the operation of the doctrine of part performance.
[44] The doctrine of part performance is an equitable doctrine. Under the doctrine, a contract initially unenforceable due to non-compliance with the formal requirements of the Act can become enforceable by virtue of acts done by the plaintiff afterwards in implementing the contract. As explained by Lord Hoffmann
in Actionstrength,5 the doctrine was justified by a combination of two reasons.6 The first was a form of estoppel, it being unconscionable for one party to an agreement to stand by and let the other party incur expense or to prejudice their position on the faith of the agreement being valid and then turn around and assert that the agreement is unenforceable. The second reason was that the acts done by the plaintiff could in themselves prove the existence of the contract in a way which could be an acceptable substitute for any note or memorandum required by the statute.
[45] Cardrona, of course, argues that it relied on the unsigned guarantee in continuing the training programme for the benefit of the Tait-Jamieson family.
[46] In support of his argument that the doctrine of part performance does not apply to contracts of guarantee, Mr Colthart referred me to ss 24-27 of the Property Law Act 2007. The effect of those provisions is to confine the application of part performance to contracts for the sale of land and exclude contracts of guarantee.
[47] The Property Law Act only came into force on 1 January 2008. It does not apply to the contract at issue in this case which is dated 31 July 2007. Despite this, Mr Colthart contends the statutory provisions are nevertheless relevant because, he says, they are a confirmation of existing law, rather than creating new law.
[48] However, the pre-Act common law position was not entirely certain. In its
1991 Preliminary Paper for the Property Law Act Project, the Law Commission stated “it seems that the doctrine of part performance has no application to a contract of guarantee”.7 (Emphasis added)
[49] The assertion was necessarily tentative because there was English authority8
going either way, and no definitive New Zealand decision. Further, a significant
5 Actionstrength Ltd (trading as Vital Resources) v International Glass Engineering IN.GL.EN SpA [2003] 2 All ER 615 at [22].
6 See also Fleeming v Beevers [1994] 1 NZLR 385.
7 Law Commission The Property Law Act 1952 (NZLC PP16, 1991) at 40.
8 Britain v Rossiter (1879) 11 QBD 123; cf McManus v Cooke (1887) 35 Ch D 681; Hammersley v De Biel (1841) 12 CI & F 45; Lassence v Tierney (1849) 41 ER 1379.
body of academic opinion was opposed to guarantees (and other types of contracts)
being automatically excluded from the ambit of the doctrine.9
[50] Although he did not say this in so many words, Mr Colthart suggested the matter had however been put beyond all doubt by the 2003 House of Lords decision in Actionstrength. Mr Colthart submitted that in Actionstrength, the Law Lords unanimously held that the doctrine of part performance was inapplicable to guarantees.
[51] Strictly speaking, however, that is not correct. The decision was actually about estoppel, not part performance.
[52] As explained by Lord Hoffmann, the estoppel doctrine partially underpins part performance.10 Estoppel is, however, wider. It is based upon unconscionability, disallowing a party to deny an assumption, belief or expectation that it has allowed another to rely on where such a denial would be unconscionable.11
[53] The problem with applying the doctrine of part performance (or estoppel, for that matter) to contracts of guarantee lies in the nature of a guarantee and the difficulty of proving acts of performance sufficiently referable to the oral guarantee as distinct from the contract with the principal debtor. As Lord Hoffmann points out, it is in the nature of a guarantee that the party seeking to enforce it will always have performed first by conferring a benefit on the principal debtor so as to create the guaranteed debt without which the creditor cannot sue. It will thus always be the case, in every claim, that the creditor will have acted to their detriment on the faith of
the guarantor’s promise. To apply part performance or admit an estoppel on that
9 Compare for example Cheshire and Fifoot Law of Contract (9th ed, Butterworths, London, 1976) at 196; Meagher et al Equity Doctrines and Remedies (4th ed, Lexisnexis Butterworths, Chatswood NSW, 2002) at [20-215]; R Stonham The Law of Vendor and Purchaser (Lawbook Co, Sydney, 1964) at 93-94; I Spry The Principles of Equitable Remedies (8th ed, Lawbook Co, Sydney, 2010) at 278-281..
10 At [25].
11 Butler et al Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at
602.
basis would obviously have the effect of making all oral guarantees enforceable, thereby completely defeating the purpose of the Contracts Enforcement Act.12
[54] In my view, the significance of Actionstrength to this case is that despite the difficulties, the Law Lords (or at least a majority of them) did not discount the possibility of there being circumstances in which a guarantor could be estopped from relying on the Statute of Frauds. Lords Bingham and Walker accepted that as a matter of law the ordinary principles of estoppel by convention may apply to guarantees given appropriate facts, while Lord Clyde said he was content to proceed
on the assumption that estoppel could apply.13
[55] In accepting that general estoppel principles are, or may be applicable, to oral guarantees, Lords Bingham, Walker and Clyde emphasised that there must be something more than the promise of the guarantor itself. While their respective formulations of the “something else” differ slightly, all identified the sorts of circumstances in which estoppel would be available as involving the following
elements:
An assumption on the part of the creditor that goes beyond the primary assumption that the guarantor will honour their promise, such as an
assumption that the guarantor regards the agreement as enforceable.
The assumption is induced or encouraged by the guarantor. The creditor relied on that assumption.
It would be unconscionable in all the circumstances for the guarantor to
place reliance on the statute.
[56] Unfortunately, there is no New Zealand authority directly on point.
However, I see no reason in logic or principle why a New Zealand Court should not
12 The position is different with contracts for the sale of land because such contracts are almost always executory for a significant period. Guarantees, however, frequently have little or no executory element: see D Webb “When is a Promise Not a Promise?” [2003] NZLJ 157.
13 At [8], [34] and [50]. Lord Hoffmann did not find it necessary to consider the issue.
adopt the reasoning in Actionstrength. Significantly, Amalgamated Investment & Property Co Ltd (In Liq) v Texas Commerce International Bank Ltd,14 a decision cited by Lord Bingham, has been approved and followed in this country.
[57] The reason the creditor in Actionstrength failed was because, in seeking to show inducement or encouragement, it was unable to rely on anything beyond the oral agreement.
[58] In this case, however, there was a written record of the agreement – an important distinction – as well as express representations confirming the unsigned agreement would be honoured. I accept that at no stage did the parties expressly discuss the absence of a signature and the provisions of the Contracts Enforcement Act. However, by the time of his communication on 18 December 2007, Mr Tait-Jamieson was aware the document of 31 July 2007 had been delivered to Cardrona, and aware that Cardrona was relying on it. Mr Tait-Jamieson, who is a lawyer, obviously knew he had not signed the document, yet he affirmed it. It is an irresistible inference from the evidence that he clearly intended to encourage a belief in the validity of the agreement and its enforceability. He continued to foster that belief in subsequent emails, right up until May 2008.
[59] Mr Colthart argues that whatever representations Mr Tait-Jamieson may have made, Cardrona did not rely on them because the representations were all made after the season had ended and the training programme concluded.
[60] One answer is to say that the delivery of the document at the beginning of the season was in itself a representation as to the legal validity of the document on which Cardrona relied by continuing the training programme. This, after all, was a document generated by the three men of their own initiative. It was tacitly approved by Mr Tait-Jamieson. He knew it was intended for delivery to Cardrona. It was addressed to Cardrona. And he knew it was intended to induce Cardrona not to
terminate the programme.15 While he may not have known whether it had in fact
14 Amalgamated Investment & Property Co Ltd (In Liq) v Texas Commerce International Bank Ltd
[1981] 3 All ER 577.
15 See the discussion by Lord Walker in Actionstrength, at [51], about delivery constituting a representation.
been delivered before the end of the season, equally he took no steps to ensure it was not delivered. To put it another way, he armed Mr Winsloe with the document and then stood by.
[61] A further argument raised by Mr Colthart concerned Cardrona’s thought processes when it received the document. Mr Colthart drew my attention to various passages in the notes of evidence where under cross-examination Cardrona’s general manager stated that he did not know Mr Tait-Jamieson at the time and he was relying on Mr Winsloe’s signature. In Mr Colthart’s submission, this shows no reliance whatsoever was placed on Mr Tait-Jamieson.
[62] I disagree with that analysis. The evidence needs to be considered in its entirety, bearing in mind that on the face of the document by far the largest sum was alongside the name of Tait-Jamieson. The general manager’s comments about relying on Mr Winsloe were in the context of questioning as to why he was not concerned about the absence of the other signatures and about the appropriateness of Mr Winsloe being the only signatory. The general manager relied on Mr Winsloe in the sense that he was confident Mr Winsloe would not be delivering such a document unless the people named in it had agreed to its contents, and as the Judge found, Mr Tait-Jamieson had indeed agreed. Significantly, the general manager specifically stated in evidence that he relied on the contents of the document and when asked: “So it’s not really correct, strictly, is it for you to say that you relied on the signatories, plural, to the document”, he stated “Ah, if we’re talking about an
actual signature as opposed to the names, yes.”16
[63] In any event, even if I am wrong on that and delivery did not amount to a representation, the evidence establishes there was reliance on Mr Tait-Jamieson’s post-season representations in that Cardrona granted Central Lakes and Mr Tait-Jamieson extensions of time so as not to jeopardise funding applications for the
2007 and 2008 seasons, and also agreed to a discounted rate of interest. There is the further point, too, that Cardrona lost the opportunity (as a result of Mr Tait-Jamieson’s representations) of rectifying the legal position by securing his
signature in December 2007. The evidence suggests it may well have been in a
16 Notes of evidence, page 7.
stronger bargaining position to achieve that in December 2007 than it was by mid-
2008 when it became apparent that Mr Tait-Jamieson was intending to default on his promise.
[64] To apply estoppel in the circumstances of this case does not in any way undermine the policy of the Contracts Enforcement Act. Certainty is not being sacrificed at the altar of fairness. The agreement being enforced was in writing, so there is certainty as to its terms. Nor is this a case of a powerful creditor and an inexperienced person being led into a one-sided and ill-considered obligation he did not fully understand, and from which he did not gain any benefit.17 This was not a document drawn up by the creditor, or even at the suggestion of the creditor. The document was the result of a meeting which Mr Tait-Jamieson attended and it was a document which was circulated to him for approval. It was addressed to Cardrona
and so as I have said, Mr Tait-Jamieson knew it was to be delivered for the purpose of inducing Cardrona not to terminate the training programme. It did in fact have that effect. As for the requirement of a signature, the purpose of a signature is to evidence an intention to be contractually bound. Mr Tait-Jamieson personally and expressly affirmed his intention to be bound both orally over the telephone and also, importantly, in writing via email. Further, he personally obtained a significant benefit as a result of the guarantee.
[65] In all the circumstances, it would clearly be unconscionable for him to rely on the absence of a signature, and subject to the issue of leave, I am satisfied he should be estopped from doing so.
[66] In coming to this conclusion, I have not overlooked a passage in Dellaca
where Tipping J stated:18
At no stage however has it been held that equity will relieve against the consequences of the statute on general principles of estoppel. The doctrine of part performance has been much more tightly framed and controlled than that. This must be right because equity has never claimed any general power to dispense with the observance of statutes on the basis that a party is
17 See the discussion by Lord Bingham in Actionstrength, at [6], regarding the reasons why the requirement of writing in respect of guarantees has been retained.
18 At 108.
estopped from relying upon a right which Parliament has for better or worse given.
[67] However, that was said in 1991 and since then there have been significant developments in the law of estoppel. Moreover, the statement was obiter and the Judge’s attention had obviously not been drawn to the High Court of Australia decision of Waltons Stores. 19 In Waltons Stores, the High Court in fact upheld a claim based on estoppel where the contract was otherwise unenforceable as a result of a failure to comply with the Australian equivalent of the Contracts Enforcement Act:20
The Statute of Frauds and similar provisions prescribing formalities affecting proof of contracts have never stood in the way of a decree to enforce a proprietary estoppel (see Crook v. Corporation of Seaford (1870) LR 10 Eq
678) and, in principle, there is no reason why such provisions should apply when any other equity is created by estoppel. The action to enforce an equity
created by estoppel is not brought "upon any contract", for the equity arises
out of the circumstances. This is not to say that there is an equity which precludes the application of the statute. It is to say that the statute has no application to the equity.
[68] There is an argument that the requirements for an estoppel in Australian jurisprudence are less stringent than those stipulated by the House of Lords in Actionstrength. However, it is unnecessary for me to reach any concluded view on that issue, as I am content to rely on the reasoning of the House of Lords.
Should leave be granted to Cardrona to rely on estoppel?
[69] Pleadings may, with the leave of the Court, be amended at any stage of the proceeding.21 It is also well established that an appellate Court may allow a party to raise a new point on appeal, especially where the new point is concerned with matters of law and where there is no prejudice to the other party.22
[70] Mr Colthart contended that the granting of leave would be unfairly prejudicial to Mr Tait-Jamieson because, had part performance or estoppel been
pleaded, he might have called Mr Winsloe and Mr Smith to give evidence.
19 Waltons Stores (Interstate) Limited v Maher [1988] HCA 7, (1998) 164 CLR 387.
20 At [40] per Brennan J.
21 High Court Rules, r 1.9.
22 Foodstuffs (Auckland) Ltd v Commerce Commission [2004] 1 NZLR 145 (PC).
[71] I do not accept that argument.
[72] As Mr Barton points out, one of the key issues at the hearing was whether Mr Smith had authority to prepare the 31 July 2007 document, and whether Mr Winsloe had authority on behalf of all three men to deliver the document to Cardrona. Yet Mr Tait-Jamieson did not call either of them. In those circumstances, it is a reasonable inference that any evidence they might give would not be favourable to Mr Tait-Jamieson. Both men settled with Cardrona and never attempted to challenge the enforceability of the guarantee.
[73] Significantly, Mr Colthart does not say what evidence the two might have given bearing on part performance or estoppel.
[74] In my assessment, this is very much a case of someone attempting to evade his liability on what a layperson would not unreasonably see as a technical loophole.
[75] I am satisfied there is no material prejudice and that it is in the interests of justice for leave to be granted and the case determined on its correct legal footing.
[76] For completeness I record that, because of the view I have taken about estoppel, it is unnecessary for me to reach any concluded views about the applicability of part performance.
Construction of the document
[77] The concluding paragraph of the 31 July 2007 document read:
Signed by the above parties to signify undertaking to pay above amounts in the first week of October 2007 if called upon to do so on or before 30
September 2007.
In the event CLSR charitable funding comes through prior to 30 September
2007 the above undertakings are automatically voided.
[78] Mr Colthart says the words “if called upon to do so on or before 30
September 2007” are unambiguous and must be given their ordinary and natural
meaning. In his submission, they make it clear the guarantee was limited in its terms
and because Cardrona failed to call upon Mr Tait-Jamieson to honour the guarantee by 30 September, thereafter it was unenforceable.
[79] I disagree. Following Vector Gas,23 the clause must be construed having regard to the matrix of facts and the parties’ underlying purpose which was two-fold:
i)To secure Cardrona’s services despite the uncertainty over funding.
ii) To protect its position should funding not eventuate.
[80] The significance of the 30 September 2007 reference is that as at the date of the document, it was anticipated Central Lakes would know the outcome of its funding applications by then. However, it was not absolutely certain that would be the case and indeed, as it transpired, as at 30 September 2007 Central Lakes was still endeavouring to obtain funding. To interpret the clause as meaning the parties to it were released from all liability if not called upon to pay by 30 September 2007 would be to defeat the parties’ intentions.
[81] In interpreting the contract, the Court is also entitled to have regard to the parties’ post-contract conduct. That includes Cardrona’s continued provision of services after 30 September, Central Lakes’ continued attempts to find funding after
30 September and Mr Tait-Jamieson’s acknowledgement of an existing obligation well after 30 September 2007.
[82] In my view, having regard to the matrix of facts and post-contract conduct, the correct interpretation of the clause is that adopted by the District Court Judge, namely that the clause is only specifying the date of payment in the event, and only in the event, of funding not eventuating by 30 September 2007, and Cardrona electing to call on Mr Tait-Jamieson. Much clearer words would be required to
satisfy me the clause meant the parties would be released from all liability.
23 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444.
Outcome
[83] Although I have found the Judge was wrong in relying on the authenticated signature fiction to overcome the absence of a signature, I am satisfied that the Judge’s decision can nevertheless be justified on the basis of the doctrine of estoppel.
[84] It follows that the appeal must be dismissed.
[85] As regards costs, my expectation is that these will be able to be resolved. If, however, agreement does not prove possible and the parties require me to make an award then I direct that Cardrona is to file submissions within 10 working days, with any response 10 working days thereafter.
Delay in delivery of judgment
[86] Unfortunately, delivery of this judgment has been significantly delayed as a result of the Christchurch earthquake of 22 February 2011 which resulted in several files, including this one, being trapped in the Court building.
[87] I regret any inconvenience caused to the parties.
Solicitors:
Carter Atmore Law, Auckland
(Counsel: M Colthart, Auckland) Anderson Lloyd, Dunedin
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