MANN v WESTPAC BANKING CORPORATION [1989] NSWCA 138

MANN v WESTPAC BANKING CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, PRIESTLEY and MEAGHER JJA 8 November 1989, 8 November 1989

[1989] NSWCA 138

GUARANTEE — appeal — application for new trial on ground of fresh evidence — no new question of principle.

Council of the City of Wollongong v Cowan (1955) 93 CLR 435 applied.

Samuels JA The respondent to this appeal sued the appellants on an instrument dated 3 May 1983, by which the appellants guaranteed payment to the respondent of advances or accommodation granted or to be granted by the respondent to a company called Western Medical Services Pty Ltd (which I will call Western') of which the appellants were in substance the proprietors.

Campbell J gave judgment for the respondent in the sum of $119,117.51, including interest, and it is against that order that the appeal is brought. The relevant facts may be shortly stated.

The appellants conducted a company called Aircall Communication Pty Ltd (which I will call Communication') which they were anxious to develop and expand, for which purpose they required further capital. In addition the appellants' business was suffering from a cash flow problem which had been alleviated by funds provided by Western's bankers, the Australia and New Zealand Bank, and by Australian Guarantee corporation. Being in need of further cash Mr Mann sought additional accommodation from the respondent, which was provided by Mr Challoner, the assistant manager of the respondent's Parramatta branch, on the security of an unregistered mortgage and a debt and interest guarantee. However, the overdraft limit was exceeded and it is evident that by early 1983 the appellants were in some financial difficulty.

Mr Challoner had introduced Mr Mann to a Mr Berry, the executive of a financier called Business Loan and Equity Capital Pty Ltd (which I will call BL and E') and discussions had taken place about the provision by BL and E of venture capital. On 23 March 1983 BL and E made an offer to subscribe $100,000 to Communication.