Tuckfield v Rodighiero [1999] NSWCA 441

New South Wales Court of Appeal CITATION : Tuckfield v Rodighiero [1999] NSWCA 441 revised - 02/12/99 FILE NUMBER(S) : CA 40668/98 HEARING DATE(S) : 25 November 1999 JUDGMENT DATE : 25 November 1999

John Henton Tuckfield (Appellant) PARTIES : v Guiseppe Giordano Rodighiero (Respondent) JUDGMENT OF : Meagher JA at 14; Handley JA at 15; Fitzgerald JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 7423/98 LOWER COURT JUDICIAL OFFICER : Fisher ADCJ

COUNSEL : A: W Carney R: W Hodgekiss SOLICITORS : A: Helen Brudenell-Woods R: Warren F Ball & Co CATCHWORDS : Indemnity; enforceability of indemnity; "letter of comfort"; activation of obligation under indemnity DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40668/98 DC 7423/98

MEAGHER JA HANDLEY JA FITZGERALD JA

THURSDAY 25 NOVEMBER 1999

JOHN HENTON TUCKFIELD v GUISEPPE GIORDANO RODIGHIERO

JUDGMENT

1 FITZGERALD JA: This is an appeal from a District Court judgment in favour of the respondent against the appellant for $101,889 plus interest and costs. The appellant and others, including the respondent's son, Mr R M Rodighiero, were directors and shareholders of Kemport Limited. 2 In consideration of the promise contained in a document which is in the appeal book page 75 and which I will set out as a schedule to this judgment, which document was executed by the appellant, the respondent's son, and a third director of Kemport, the respondent guaranteed Kemport's liability to the National Australia Bank and supported his guarantee by the deposit of a number of shares in another company, Power International Limited. 3 According to the appellant in his defence in the District Court, although not pressed on this appeal, the document which was signed by the appellant and the other two directors and shareholders in Kemport was not a guarantee or indemnity given by them but merely what was described as a "letter of comfort" given to the respondent which was not given by the directors but given by Kemport. Such a submission reflects no credit on the appellant, especially when it is noted that the respondent is a person of limited education and poor English language skills and that the material document was prepared by the appellant and signed at his office and there is no suggestion that the appellant advised the respondent to obtain independent legal advice. 4 It is perhaps not surprising in these circumstances that, although the appellant made various allegations in the defence which he caused to be filed in the District Court, he gave no evidence. The submission now made in the appellant's written submissions that no significance should be attached to his failure to give evidence is, however, surprising. 5 The trial judge found that Kemport defaulted on its liability to the National Australia Bank and that "…the bank called in the [respondent's] guarantee to the extent of $101,889". Shares in Power International Limited were sold and part of the proceeds were used to discharge Kemport's debt to the bank. 6 One point taken in this Court by the appellant was that the respondent's statement of claim was not "expressly based upon the document" set out in the schedule, but "upon a general allegation that the appellant amongst others undertook to the respondent that no loss would be suffered by him in the transaction". This point is without merit. 7 The appellant's principal argument in this Court appeared to be that the respondent's evidence was insufficient. The appellant's written submissions contain the following assertion, namely: "… that there was no evidence of any default or that the bank required the sale of the [Power International Ltd] shares to recoup the guarantee or that the bank was paid pursuant to the guarantee or that the proceeds of the sale assisted Kemport Limited or of a request being made to the appellant to honour the guarantee."