ATL (Australia) Pty Ltd v Cui [2023] NSWSC 336

Supreme Court New South Wales

Medium Neutral Citation: ATL (Australia) Pty Ltd v Cui [2023] NSWSC 336 Hearing dates: 16-24 February 2023 Date of orders: 6 April 2023 Decision date: 06 April 2023 Jurisdiction: Common Law Before: Fagan J Decision: (1) Judgment for the plaintiff against the second defendant in the sum of $16,737,057.68 inclusive of interest up to judgment. (2) The second defendant is to pay the plaintiff's costs of the proceedings against him. (3) The plaintiff's claim against the 11th defendant is dismissed with costs. Catchwords: GUARANTEE AND INDEMNITY – factors affecting validity of guarantee – non est factum – whether second defendant erroneously believed he signed guarantee only as director of the corporate borrower – when the signatory knew the essential character of the guarantee – defence of non est factum not established GUARANTEE AND INDEMNITY – factors affecting validity of guarantee – unjust contracts – considerations under s 9 of the Contracts Review Act 1980 (NSW) – contract not unjust in the circumstances relating to the contract at the time it was made GUARANTEE AND INDEMNITY – discharge of guarantor – variation of guarantee – where side agreement between creditor and borrower made prior to execution of guarantee – no alteration of the guarantor's rights – principle in Ankar Pty Ltd v National Westminster Finance not engaged GUARANTEE AND INDEMNITY – purported execution by corporate guarantor (eleventh defendant) – director's signature forged – comparison by the Court of signature in guarantee and authentic examples – where satisfied on the balance of probabilities of forgery Legislation Cited: Bankruptcy Act 1966 (Cth) Contracts Review Act 1980 (NSW) Corporations Act 2001 (Cth) Personal Property Securities Act 2009 (Cth) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 Ford v Perpetual Trustees Victoria Limited (2009) 75 NSWLR 42; [2009] NSWCA 186 Quikfund (Australia) Pty Limited v Airmark Consolidators Pty Limited [2014] FCAFC 70 Singh v De Castro [2017] NSWCA 241 Category: Principal judgment Parties: ATL (Australia) Pty Ltd (plaintiff) Jinsong Cui (first defendant) Jeffery Tse Hung Lee (second defendant) Liang Zhao (fourth defendant) Gondon HLHS Pty Ltd (fifth defendant) HLHS Partners Epping Pty Ltd (sixth defendant) Arise Building Pty Ltd (seventh defendant) Tang Asset Management Pty Ltd (eighth defendant) Lansha Asset Management Pty Ltd (ninth defendant) Lee's Asset Management Pty Ltd (tenth defendant) Arise Group Pty Ltd (eleventh defendant) Representation: Counsel: P Knowles (plaintiff) D Smallbone with J Wheeldon (second defendant) M Wang (solicitor) (eleventh defendant)