RING TREAD SYSTEMS (AUSTRALASIA) PTY LTD (RECEIVER AND MANAGER APPOINTED) v TUBB [1998] NSWCA 186

RING TREAD SYSTEMS (AUSTRALASIA) PTY LTD (RECEIVER & MANAGER APPOINTED) v TUBB

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA 30 October 1998, 30 October 1998 [1998] NSWCA 186

Appeal and new trial — fresh evidence — false evidence given by respondent — court deceived in a material aspect — new trial ordered

Contracts Review Act — relief available to guarantors of the business debts of a corporate principal

Mason P The appellant held the marketing and distribution rights within Australia in respect of a tyre retreading system. In early 1989 there were discussions between a director of the appellant, Mr Carroll, and the respondent, who was the executive director of Speedy Tyres Pty Ltd (Speedy Tyres), a tyre repair organisation operating in Launceston, Tasmania. These discussions culminated in the execution of two documents.

The first was a licence agreement dated 30 June 1989 between the appellant and Speedy Tyres, pursuant to which the appellant as licensor granted certain exclusive rights to use the system in Tasmania. That agreement provided inter alia for the credit terms pursuant to which goods would be sold and delivered to Speedy Tyres. The licence agreement was executed under the common seal of Speedy Tyres, with the seal being countersigned by the respondent as a director.

There is a dispute as to the place and date of execution of the second document, which is a credit account application form. The respondent's evidence was that this was signed in Bowral on 30 June 1989 at the same time as the licence agreement. Mr Carroll's evidence was that the respondent took the document away from the meeting at Bowral back to Launceston where it was signed. It bears date 6 July 1989. The front page of the document is an application for the granting of credit on behalf of Speedy Tyres signed by the respondent and witnessed. The second page is a guarantee containing six clauses. It is signed by the respondent as guarantor and his signature is witnessed.