MORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 22 July 1992, 17 December 1992 [1992] NSWCA 289 GUARANTEE — personal obligation by husband and wife — wife's guarantee provided by husband as attorney — large debt — belated application to raise defences under Trade Practices Act — contest of representations made — held: (by maj): Appeal dismissed. ANTI-DISCRIMINATION — wife — execution of guarantee — separate entitlements of — belated application for adjournment to raise defence under Contracts Review Act — appeal (by maj). GUARANTEE — husband and wife — guarantee of debts of company — alleged promise that guarantee would never be called on — belated application by husband and wife for adjournment to raise defences under Trade Practices Act 1974 (Cth) s52A, Fair Trading Act 1987 and Contracts Review Act 1980 — adjournment refused by trial judge — appeal against (1) refusal of adjournment; and (2) determination that alleged representation had not been made as claimed — held: (1) (by the Court): Having regard to the determination by the trial judge that no such representation was made that the guarantee would never be called on, the determination of the substantive point could not be disturbed on appeal. Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 (HC) applied; (2) (by the Court): The refusal of the adjournment in the case of the defendant husband was not shown to have involved any error of principle or to have occasioned any substantial injustice so that the appeal by the husband upon that ground should be refused. GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 (CA); Adamopoulos and Anor v Olympic Airways SA and Anor (1991) 25 NSWLR 75 (CA) applied. Raybos Australia Pty Ltd and Anor vy Tectran Corporation Pty Ltd and Ors [No 4] (1986) 6 NSWLR 674 considered; (3) (by Mahoney and Meagher JJA; Kirby P dissenting): The challenge by the defendant wife of the refusal of the adjournment should also be dismissed as she was fully aware of the granting of the guarantee and of its general nature and contents and suffered no injustice by the refusal to permit her to raise a defence under the Contracts Review Act 1980. Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 referred to. ANTI-DISCRIMINATION — marital status — separate position of wife — obligation under guarantee — guarantee executed on wife's behalf by husband as attorney — wife received no separate advice in respect of execution of guarantee — belated application to raise defence under Contracts Review Act 1980 — application refused — appeal — held (Mahoney and Meagher JJA; Kirby P dissenting): The appeal should be dismissed as the evidence showed that the wife was sufficiently aware of the nature and terms of the guarantee. Contracts Review Act 1980, s9. Fair Trading Act 1987, s43. Trade Practices Act 1974 (Cth) s52A. Kirby P Before the Court are two appellants and a corporate respondent. The appellants are Mr Theodore Morris and Mrs Diane Morris. They are husband and wife. But they are two individuals. They have separate property interests, 2 UNREPORTED JUDGMENTS separate personalities in law and separate entitlements to consideration of their separate arguments and separate legal rights. The separate position in law of wives In the present proceedings Mr and Mrs Morris have been represented by the same solicitor and counsel. Undoubtedly, they have many common interests in the litigation. But those interests are not identical. The days when a wife could be regarded as a mere legal appendage of her husband have long since passed. Marital obedience by a wife to a husband in all things economic, social, personal and sexual may still seem commendable to some. But to others, such notions of "obedience" will seem anachronistic relics of unlamented past times. In the changing social circumstances of individuals in Australian society today, it is a mistake for courts to treat wives who assert their separate status as nothing more than the alter-egos of their husbands. Relics of this earlier attitude certainly survive to trouble this Court. Instances include cases such as Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 (CA). But in Australia, as in England and elsewhere, courts are now properly sensitive to the need to differentiate the position of husband and wife when matters come to litigation. Where it is appropriate to the facts, courts will consider the wife as a separate individual entitled to have her interests separately respected, protected and determined. Those who are in doubt concerning the response of our "live system of law" to the "changing circumstances" affecting the position of a wife in marriage should start their re-education by reading Gosper. If they find it uncongenial to plunge into such texts as R Graycar and J Morgan, The Hidden Gender of Law, Federation, Sydney, 1990 and J Scutt, Women and the Law, Law Book Co, Sydney, 1990, they will do well to add to their instruction at least a reading of the recent decision of the House of Lords in Regina v R [1991] 3 WLR 767 (HL). Times are changing in society and in the law. It is no longer good enough to lump the wife's interests in with her husband's or, for that matter, a woman's interests with those of men with whom she is associated. I state these basic propositions at the outset of these reasons because they provide the starting-point for what is, for me, the only real issue of difficulty in this appeal. The background facts are stated in the reasons of Meagher JA. The appeal comes as a challenge from two decisions made by Rogers CJ Comm D in the Commercial Division of the Supreme Court. So far as the challenge to the second, and substantive, decision by his Honour is concerned, I agree with what Meagher JA has written. In that contest, each of the appellants separately asserted that they were given certain assurances by Mr LJ Plever as to the call on personal guarantees which they had earlier given. His Honour rejected the appellants' evidence in that regard. He did so primarily upon the basis of the "innate unlikelihood" of the evidence of the appellant, Mr Morris. But he relied also upon the "serious discrepancies" in the evidence given both by Mr and Mrs Morris. Whilst Rogers CJ Comm D found Mrs Morris to be "a considerably more convincing witness", he concluded that he also could not accept the accuracy of her recollection. Rogers CJ Comm D had the advantage of seeing Mr and Mrs Morris and also Mr Plever give their respective evidence. In the end, he preferred the evidence of Mr Plever. In the circumstances, and for want of the documentary or other incontrovertible proof to confirm the appellants' contentions, his Honour's conclusion is, in this regard, impregnable. It is not contradicted by any objectively demonstrated and contemporaneous evidence. It is not palpably URJ MORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD (Kirby P) — 3 unreliable or glaringly improbable. On the contrary, I find his Honour's conclusion in this respect entirely convincing. Consistent with the duty of this Court to defer to conclusions which depend, even in part, upon inferences drawn from the assessment of the honesty of witnesses, we are forbidden from disturbing his Honour's conclusion. See Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178f; Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 (HC) at 105 and cases there cited. I therefore agree with Meagher JA that the appeal by each appellant, against what his Honour has described as the "substantive point", must be dismissed. Refusal to allow reliance on Contracts Review Act That leaves the challenge to the anterior decision of Rogers CJ Comm D to deny the appellants an adjournment upon the basis of their applications to file defences based upon the Trade Practices Act 1974 (Cth), s52A, the Fair Trading Act 1987, s43 and the Contracts Review Act 1980, s9. His Honour, in refusing that application, described it as having the flavour of: ".. last-minute thoughts prompted by desperation but also... on the face of it, surprising in the mouth of an experienced businessman such as the first defendant." It is appropriate to record in a little detail the circumstances of the application for adjournment. They were these. The respondent commenced its proceedings against the appellants by a summons filed on 12 November 1991. By the summons, the respondent sought an order that the appellants pay it a sum slightly in excess of $70 million pursuant to an indemnity agreement dated 28 December 1988. The summons was first returned on 29 November 1992. Separate defences were filed on behalf of each of the appellants on 11 December 1991. On 13 December 1991, Brownie J in the Commercial Division of the Supreme Court, gave leave to the respondent to file an amended summons. This was duly done on 30 December 1991. No defences were filed by the appellants to this amended summons. The respondent then moved the Court for summary judgment. That motion came before Rogers CJ Comm D on 7 February 1991. His Honour fixed 2 March 1992 as the date for final hearing. On 25 February 1992, ie five days before the commencement of the final hearing, the respondent filed a reply. That document purported, in the proceedings on the amended summons, to rely upon the terms of a deed of settlement dated 16 August 1990 allegedly executed by, or on behalf of, each of the appellants in the circumstances described in the reasons of Meagher JA. When the hearing commenced on 2 March 1992, an application was immediately made on behalf of the appellants to "amend" their defences. It was for that purpose that they sought the adjournment. Their application was supported by affidavits by the appellants by and by their solicitor. Three reasons were advanced to support the application. First, the appellants proposed to "amend" their defences and to file cross-claims. Secondly, the appellants had changed their solicitor four days before the hearing. The new solicitor claimed that he was not in a position properly to present their defences. Thirdly, the appellants proposed to challenge the efficacy of the deed of settlement upon which the respondent was now additionally relying. Rogers CJ Comm D refused the adjournment application for reasons which will be described. He also declined to permit, in effect, the filing of defences to the amended summons which raised, in more express and ample terms, defences under the Trade Practices Act, the Fair Trading Act and the Contracts Review Act. 4 UNREPORTED JUDGMENTS So far as the three grounds raised in support of the application and now urged on this Court, two can be put to one side immediately. The change of solicitors, so shortly before the hearing of the trial, was an initiative of the appellants. It should not be allowed to cause delay and injustice to the respondent. See Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451 (FFC) at 460. The challenge to the deed of settlement receded in importance having regard to the way in which Rogers CJ Comm D ultimately determined the case. His Honour did not rely upon that deed to fix the appellants, or either of them, with liability. Accordingly, the only relevant issue is whether the refusal by his Honour to permit the appellants to amend their defence and to file cross-claims occasioned them such an injustice as to attract the intervention of this Court in their appeals. Rogers CJ Comm D referred in his reasons to the purposes of the Commercial Division and the need for parties to adhere to the days fixed for hearing, the very substantial sum owing to the respondent, guaranteed by the appellants, the possible decline of the value of the appellant's assets available to meet the debt and the risk to the interests of the respondent which could not be protected by an adjournment on conditions as to costs and an expedited relisting. His Honour concluded his reasons by stating that the adjournment was: ".. not required by the nature of the defence proposed to be filed on behalf of the first defendant and... justice can be done to the parties by a consideration of the defence already filed which appears to be the substantial matter in issue between the parties." Mr and Mrs Morris contend before this Court that, as a result of the refusal of the adjournment, they were prevented from raising the defences which they wished to raise under the several Acts mentioned. In that way, they contend, they were denied a trial upon their defences on the merits according to law, ie they were denied due process of law. Even upon the premise that Mr Plever's evidence was accepted, it was still open to the appellants (so their arguments ran) to contest the obligation on the personal guarantee, apparently offered by the deed of indemnity, by invoking the protections of the several statutes referred to. Appellate review of adjournment decisions The rules governing the review by an appellate court of a refusal by a trial judge to grant an adjournment are well known. They are a species of the review of discretionary decisions of practice and procedure in which, in this State, a particular rule of restraint is observed for the reasons explained by Jordan CJ in In re the Will of FB Gilbert (Dec'd) (1946) 46 SR (NSW) 318; 63 WN (NSW) 176 (FC). Nevertheless, whenever a court's jurisdiction is lawfully invoked, it is essential that the court should perform its judicial function. It is a mistake for judges to approach any application before them with mental blinkers. Restraint does not require automatic rejection of an argument. Judges must never become unthinking, mechanical automatons. An appellate court must approach each application, as indeed any judicial function, with dispassion. It must provide independent review against the chance that an error of principle may be demonstrated, occasioning serious injustice and warranting a new trial. In many cases, a refusal of an adjournment will cause little injustice - or at least no such injustice as cannot be cured by the conduct of the trial. In other cases, the adjournment may be deemed essential to the proper defence of the parties' interests. Normally, where an adjournment is sought and the inconvenience to another party can adequately be protected by an order as to costs, the adjournment should be granted upon terms fashioned to the circumstances. See Sydney County Council v Ke-Su Investments Pty Ltd and Ors URJ MORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD (Kirby P) = 5 (1985) 1 NSWLR 246 (CA) at 252, at 256 and at 258. Appellate judges must therefore approach an application for a review of such orders keeping in mind the possibility that the application may have merit. Mind-numbing incantations of obligations of restraint are no substitute for the proper judicial consideration of each application upon its own merits, always remembering the principle of restraint but never being blinded by it from acting judicially in the particular case. This is the approach which numerous decisions of this Court illustrate. See eg GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 (CA) at 712 and Adamopoulos and Anor v Olympic Airways SA and Anor (1991) 25 NSWLR 75 (CA) at 77-80. Particular reasons for restraint in reviewing adjournment decisions exist in respect of criminal trials and like proceedings. See eg Bates v McDonald [1985] 2 NSWLR 89 (CA) at 97. Cf Regina v Greer, Court of Criminal Appeal (NSW), unreported, 14 August 1992. But in civil trials different considerations apply. See eg Maxwell v Keun and Ors [1928] 1 KB 645 (CA) at 653 approved in Bloch v Bloch and Anor (1981) 55 ALJR 701 (HC) at 704. The special need for efficient and urgent attention to business disputes in the Commercial Division, involving large sums of money or credit, may be allowed. That is one of the very purposes for creating that Division and adopting special procedures in it. Cf Bomanite Pty Ltd and Ors v Slatex Corporation Australia Pty Ltd and Ors (1991) 32 FCR 379 (FFC) at 383. But the Division is part of the Supreme Court. That Court is always duty bound to accord justice to the parties who come before it. Judges do well to remind themselves constantly that the ultimate object of their labours is the just disposition of cases according to law. Having recalled these principles to mind, I return to the challenge by the appellants to the way in which Rogers CJ Comm D resolved their adjournment applications in this case. So far as Mr Morris is concerned, I have concluded that there was no such error of principle or risk of injustice in the decision of Rogers CJ Comm D as would authorise the intervention of this Court. I do not see the faintest sign of the unfairness to Mr Morris which would permit this Court to provide relief against the decision made on the way to the conclusion which followed on the "substantive point". I reach this conclusion for much the same reasons as Meagher JA has expressed. I do not, however, agree with Meagher JA's remarks about Raybos Australia Ltd and Anor v Tectran Corporation Pty Ltd and Ors [No 4] (1986) 6 NSWLR 674 (CA). If in every case which counsel lost in a hard-fought contest at the Bar, he nurtured and preserved his grievance to bring it forth years later in a judgment, following appointment to the Bench, our law books would be full of the saved-up vituperation from which they are now, generally, happily free. The decision in Raybos was one in which I was joined by Priestley JA and that distinguished late member of this Court, Glass JA. It was a unanimous opinion of the Court. It was given in special circumstances for reasons explained in the report. It must be left to others to determine whether it is the decision in Raybos which is "lamentable" (as Meagher JA asserts) or the comment upon it. The separate position of the wife in this case The foregoing conclusion leaves only the separate position of Mrs Morris in her adjournment application and what followed. To the original summons, Mrs Morris had filed a separate defence. She did so in terms which were, as Meagher JA has pointed out, brief to a fault. But for all the brevity, Mrs Morris sufficiently stated that she relied upon "the same defences asserted in" para 5(e) of her husband's defence. That paragraph (which 6 UNREPORTED JUDGMENTS is set out in full in the reasons of Meagher JA) refers, in turn, to s52 of the Trade Practices Act and to the Contracts Review Act. In refusing the adjournment to permit Mrs Morris to amend, elaborate, particularise and re-express this obscurely worded defence, Rogers CJ Comm D does not appear, by his reasons, to have given any separate consideration to her separate position. Indeed, when it comes to his Honour's summary of the reasons which led him to refuse the application, he refers only to the defence proposed to be filed "on behalf of the first defendant', ie Mr Morris. He suggests that "justice can be done to the parties by consideration of the defence" (singular) "already filed". No mention whatever is made of any separate defence which might have been available to Mrs Morris in respect of her separate position and having regard to her desire to invoke, in particular, the Contracts Review Act. By the defence filed, with its reference to the paragraph of her husband's defence which mentioned the Contracts Review Act, Mrs Morris had a foothold for a defence under that Act in respect of her separate position. That she wished to rely upon such defence is sufficiently demonstrated by her affidavit which was proffered before Rogers CJ Comm D. In that affidavit, Mrs Morris said (referring to the indemnity agreement which provides the basis for the respondent's claim against her personally): 8. "I have today been shown a document entitled Indemnity Agreement which is annexure B to the affidavit of Mr Strang filed in these proceedings. I do not recall ever having seen this document previously. 9. Ihave noticed that in respect of the indemnity agreement the document purports to have been executed on my behalf by Theo [ie Mr Morris] as my attorney. I do not recall executing a power of attorney in Theo's favour in respect of the indemnity agreement. 10. I married Theo [Mr Morris] in 1979. Prior to my marriage I worked as a secretary and his assistant. I had been working for Theo since about 1964 or 1965. During the course of the marriage Theo has asked me to sign documents on countless occasions. I understood in very general terms that these documents related to our various interests in companies and properties. My practice has been that if Theo has asked me to sign a document then I would sign it without question." The matter of concern relevant to this appeal is presented by the terms of para8 and para9. Following the rejection of the adjournment application by Rogers CJ Comm D, an attempt was immediately made by counsel for Mrs Morris (who was also counsel for Mr Morris) to read Mrs Morris's affidavit on the substantive point. According to the reporter's note taken at the trial the following then occurred: "Discussion between his Honour and counsel as to admissibility of affidavit sworn in relation to the adjournment. His Honour stated that the affidavit was rejected because the substantive wording went to issues which were not presently relevant." Later his Honour expressly stated (according to the transcript): "HIS HONOUR: Insofar as there is any admissible material in any of the affidavits that are in evidence, I have rejected material in Mrs Morris' affidavit because it does not bear on any issue." It could therefore not be clearer than that his Honour approached the determination of Mrs Morris's obligations to the respondent under the indemnity agreement without any reference whatever to the paragraphs in her affidavit to URJ MORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD (Kirby P) 7 which I have referred. This is also plain from the way in which his Honour approached the "substantive point" in his reasons which led to the judgment now challenged in this Court. The result of the foregoing is that Mrs Morris was denied the opportunity to raise in her defence any contention which she may have had, based upon the various grounds of relief which are provided under the Contracts Review Act. By s9(2) of that Act, these grounds direct attention to such matters as: (a) "whether or not there was any material inequality in the bargaining power between the parties to the contract; (b) the relevant economic circumstances, educational background and literacy of (i) the parties to the contract...; and (ii) any party who represented any of the parties to the contract; (h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act; (i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect; (j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used by the party seeking relief under this Act... (k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party." The Act is by no means a dead letter. On occasion, it has been found to provide substantive relief, including to women and to disadvantaged or gullible members of a contracting party's family. See eg Antonovic v Volker and Anor (1986) 7 NSWLR 151 (CA). Beneficial Finance Corporation Ltd v Karavas and Ors (1991) 23 NSWLR 256 (CA). The appellants each complained about the suggested failure of Rogers CJ Comm D to deal with all of their defences under the Contracts Review Act in respect of the representation allegedly made to them by Mr Plever. This complaint has no merit. Once it was decided that Mr Plever did not make the representation alleged by Mr and Mrs Morris, their claim for relief upon that basis, framed in terms of the Contracts Review Act or otherwise, evaporated. That still left the separate potential entitlement of Mrs Morris to relief upon quite a different footing, viz that she did not herself actually execute the indemnity agreement, was not earlier aware of it, received no separate advice in respect of it, and was seriously disadvantaged by the assumption that she could be roped in to guarantee her husband's obligations (and those of the companies which he controlled) simply because she was his wife and he had authority to sign the indemnity agreement on her behalf. Whereas Mr Morris did not have an arguable case under the Act in the light of his background, means of advice and business experience, the position of Mrs Morris was separate and, in my view, arguably quite different. It seems clear from the indemnity agreement that the liability of Mr and Mrs Morris as guarantors was several. The instrument repeatedly refers to "each Guarantor". Accordingly, the availability of a defence to Mrs Morris in respect of her separate interests, does not avail Mr Morris. He remains personally liable on his guarantee. So far as Mrs Morris is concerned, it is true that she attended a number of relevant meetings with Mr Morris. Most of these seem to have been conducted in restaurants and other social settings. It is also true that she had been Mr Morris's secretary and had some familiarity with, and involvement in, his 8 UNREPORTED JUDGMENTS business affairs. But the question remains whether she should have been afforded the opportunity to advance, at trial, the case which the paragraphs in her affidavit clearly indicated to Rogers CJ Comm D she wished to argue. In my view she should have had that opportunity. Her position was severable from that of her husband. It was pleaded separately. The trial of it should have been severed and so determined by his Honour. Tam not critical of Rogers CJ Comm D for coming to the conclusion which he did. The application for adjournment to re-plead was extremely belated. It was elaborated by reference to some irrelevant, unconvincing and unmeritorious arguments. His Honour was naturally concerned to protect the respondent, to uphold the efficient procedures of the Division over which he presides and to guard against the adjournment being used as an occasion for delaying the moment when Mr Morris would have to face the inevitable. But in these commendable attitudes he appears, with respect, to have overlooked the separate position of Mrs Morris. She is now before this Court. She challenges the refusal of the adjournment and the conduct of the trial which followed. She claims that these denied her the opportunity of advancing her claim for relief based upon, relevantly, the Contracts Review Act. For the reasons now stated I consider that the decision to refuse Mrs Morris the adjournment miscarried. The subsequent rejection of her affidavit which went to the issue relevant to any defence she might have had under the Contracts Review Act occasioned an injustice. I leave aside the question whether such rejection was, in any case, erroneous having regard to the defence which she had earlier filed, which remained on the record and was treated as pertinent. Rogers CJ Comm D obviously considered that the defence was irrelevant. He refused to allow the affidavit to be read for any purpose. The material in the affidavit was not dealt with by him in his reasons. Mrs Morris did not, therefore, have a trial of an issue which she sought to tender for determination. It was an issue upon which her position was separate and distinguishable from the position of her husband. Obviously, if the claim of the respondent against Mrs Morris, based upon the indemnity agreement, were defeated by reason of defences which were allowed and proved under the Contracts Review Act in respect of her separate liability under the indemnity, the respondent's claim, based on the deed of settlement would assume much greater significance. To that claim too, Mrs Morris might have available statutory defences. Her separate liability would have to be determined by a trial conducted in the usual way. Ordinarily, as Rogers CJ Comm D pointed out in an earlier case, it will not be appropriate to determine the merits of defences based on the statute, as applied to a particular transaction, in a motion for summary judgment or equivalent process. See Commercial Banking Co of Sydney Ltd v Pollard and Anor [1983] 1 NSWLR 74 (SC). Conclusion and orders In practical terms, it is possible that setting aside the judgment against Mrs Morris would have no great consequence for the protection of the appellants' interests. I cannot tell whether this is so. But whether it is so or not, it is necessary because the procedures below miscarried so far as they concerned Mrs Morris. It is necessary that those procedures be corrected not only to ensure due process of law for Mrs Morris but also to uphold, once again, the distinct and separate position of a litigant who happens to be a woman and a wife. URMORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD (Meagher JA) 9 At law, husband and wife are no longer one. A woman and a wife who is before a court is entitled, unless she elects a different course, to have her separate interests protected according to law. Because this did not occur in the present case, I propose the following orders: 1. In the appeal by Mr Theodore Morris against the orders of Rogers CJ Comm D, order that the appeal be dismissed with costs; 2. In the appeal by Mrs Diane Morris against the orders of Rogers CJ Comm D, order that the following orders be made: (a) appeal allowed; (b) set aside the judgment entered against the said Mrs Diane Morris; and (c) In lieu thereof, order that the proceedings against Mrs Morris be returned to the Commercial Division for trial upon such defence as, in that Division, Mrs Morris is permitted to file in place of the defence presently filed; 3. Order that the costs of the first trial so far as they concern Mrs Morris abide the outcome of the second trial; and 4. Order that the costs of the appeal of Mrs Morris be paid by the respondent Wardley Australia Property Management Ltd but that the respondent have, if otherwise so qualified, in respect of the costs of such appeal, a certificate under the Suitors' Fund Act 1951. Mahoney J I agree with the conclusions of Meagher JA and generally with the steps in the argument by which his Honour has arrived at those conclusions. I have had the advantage of reading the judgment of Kirby P. His Honour has arrived at the conclusion that the discretion of Rogers CJ of Comm D miscarried in his refusal to grant an adjournment to Mrs Morris. The President has proceeded to that conclusion from the starting point of the basic propositions as to the position of wives and husbands in Australian society to which his Honour has referred. I agree with Kirby P that it would be a mistake if courts treated wives who asserted their separate status as nothing more than the alter egos of their husbands. If courts so acted, it would be a grievous wrong and one which would be corrected. I have not seen that the courts do so. But, in particular, I do not think that such happened in this case. Mrs Morris gave evidence before Rogers CJ of Comm D. He was in a position to assess the relevant aspects of her evidence: he was in a position to do so superior to that which in this Court I have enjoyed. That assessment was, I think, at least relevant in determining whether an adjournment should be granted to enable her to proceed differently. Other matters were, of course, involved but an application for adjournment such as this was may be affected by what a judge sees of the person who seeks it. On the evidence as it appears before this Court, I am not satisfied that the judge wrongly exercised his discretion. But his assessment of Mrs Morris may well have been of significance in determining what he did. And I see no evidence that what she did and the impression she gave resulted from an undue or any subservience to Mr Morris. I agree with the orders proposed by Meagher JA. Meagher JA These are appeals by Mr and Mrs Theo Morris from an order made by Rogers J that they pay to the respondent the sum of $72,568,380.94 pursuant to an agreement whereby they guaranteed the indebtedness of a company called Abaloon Pty Ltd. The defence of both appellants to the respondent's action was that at the time of the execution of the guarantee the 10 UNREPORTED JUDGMENTS responsible agent of the respondent, Mr Plever, assured them that the guarantee would never be called on; that they executed the guarantee solely in reliance on this assurance; that if they had realised that there was some possibility - however remote - of being sued on the guarantee they would not have executed it. This defence is said to gain legal force from s52 of the Trade Practices Act 1974 and from the Contracts Review Act, 1980. The defence, hardly credible on the face of it, was vitiated by his Honour's findings of fact on the matter. His Honour heard evidence from both Mr and Mrs Morris, and also from Mr Plever. His Honour believed the latter and disbelieved the former. He came to the conclusion that Mr Plever may have opined that reliance on the guarantee was unlikely but never promised that it would never be relied on. Thus, confronted fairly and squarely with a finding of fact based on credibility, counsel for the appellant was unable, despite his considerable skill, to shake his Honour's finding, and the appeal on the substantive point must therefore be dismissed. It was perhaps because of the weakness of the appellant's case on the main point that most of the argument on the appeal was diverted to the question of whether his Honour was correct in refusing the adjournment which the appellants sought at the commencement of the hearing below. In order to understand this aspect of the appeal it will be necessary to recite some further facts: the guarantee in question was executed on 28 December 1988. On 6 July 1990 the present appellants commenced litigation in the Federal Court seeking to set aside the guarantee, litigation which was concluded by a Deed of Settlement executed on 16 August 1990. On 12 November 1991 the present respondent sued on the guarantee in this court. The appellants filed their defences on 11 December 1991. They were filed by their then solicitors Messrs Norwoods. There was one defence for Mr Morris and one for his wife. His Defence, in its substantive part, read as follows: (d) At the time of the signing of the Indemnity Agreement, the plaintiff owed to the First Defendant statutory duties not to engage in misleading and deceptive conduct and otherwise not to use unfair tactics or otherwise contravene the negative stipulation prescribed by the Contracts Review Act. (e) Contrary to s52 of the Trade Practices Act, and in a manner which contravened the negative stipulations prescribed by the Contracts Review Act, Mr Plever stated to the First Defendant at a meeting attended by both defendants in order to induce him to sign the Indemnity Agreement and also in order to induce him to believe that there was no risk to him in signing the Indemnity Agreement, that the Indemnity Agreement was only taken to comply with the plaintiffs internal formality requirements and was not intended to be relied upon by the plaintiff as any form of security for the reason that the principal security had more than sufficient realisable value to cover the obligations of the borrower. Her defence, which is a miracle of condensed ambiguity, was in substance as Follows: 3. The Second Defendant says that she too was present at the meeting with Mr Plever referred to in paraS(e) of the first Defendant's defence and she too relies upon the same defences asserted in that defence. On 2 March, when the matter came on for hearing pursuant to a special fixture, the appellants both asked for an adjournment, allegedly to prepare some further defence. To this day the further defence of Mr Morris is yet to be formulated, has URMORRIS v WARDLEY AUSTRALIA PROPERTY MANAGEMENT LTD (Meagher JA) 11 not been revealed to any person, and may be forgotten. Mrs Morris, however, was evidently trying to raise a "defence" that she was not liable on any document, because she knew nothing about any aspect of business and dutifully signed every document which her husband put before her for signature. Whilst if she had amended her defence to include this new ground of defence it could hardly have profited her, because commendable marital obedience to one's husband has not yet blossomed into a legal or an equitable defence. In any event his Honour refused her leave to file an amended defence, after permitting her to file an affidavit setting out what matters she would wish to raise if she were allowed to amend. The appellants contest his Honour's ruling. The granting or refusing of an adjournment is about the most discretionary order a judge can make. It can never be successfully challenged unless it is manifestly wrong, or vitiated by obvious error. It is fundamental that an appellate court should remind itself of this fact. Otherwise, it will generate such lamentable decisions as Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [1986] 6 NSWLR 674. In the present case, in my view, there is not the faintest sign that his Honour was mistaken on any question of fact or law, that he took into account any wrong consideration or failed to take into account a right one, or that the result is manifestly absurd. Looked at as from the date of the application, his Honour was aware that Mrs Morris had been her husband's secretary and assistant since 1964 and constantly discussed his affairs with him; that she was a shareholder in the debtor company; that no explanation was offered why such an obvious defence, if it were of substance, should not have been originally pleaded; that no explanation was offered as to why she had changed her solicitors from Messrs Norwoods to Messrs Tzovaras and Company; and that any further delay might seriously jeopardise the value of the property secured in favour of the respondent. He also had before him an affidavit jointly sworn on 11 December 1991 by both defendants in which she deposed as to the conversation which took place between Mr Plever and the appellants on the subject of the very guarantee in question, a fact which would not be easy to reconcile with a defence that she did not know of the existence of the guarantee. If one looks at matters as they stood after his Honour had heard the case, the correctness of his Honour's decision to refuse an adjournment becomes still more apparent, as the evidence disclosed that Mrs Morris was fully aware of the granting of the guarantee and, its general nature and contents. An attempt to bolster this appeal on the adjournment question was made by referring to the fact that the Summons itself had been amended on 30 December 1991, but this was in respect of a matter which was not controversial; and by pointing out that only four days previously the present respondent had filed a reply pleading the Deed of Settlement to which I have referred. However, this has no relevance, as his Honour decided the case without reference to that document. The appeal should be dismissed with costs. (By majority) Appeals dismissed with costs. Counsel for Appellants: AS Martin Instructed by: Tzovaras and Company Counsel for Respondents: DMJ Bennett QC with SD Epstein Instructed by: Allen, Allen and Hemsley