New South Wales Court of Appeal CITATION : PAOLA v OCE COPYING EQUIPMENT [1999] NSWCA 169 revised - 22/06/99 FILE NUMBER(S) : CA 40213/97 HEARING DATE(S) : 25 May 1999 JUDGMENT DATE : 25 May 1999 PARTIES : ANTHONY MICHAEL PAOLA v OCE COPYING EQUIPMENT PTY LTD JUDGMENT OF : Mason P at 1; Meagher JA at 10; Powell JA at 11 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 746/95 LOWER COURT JUDICIAL OFFICER : Knight DCJ COUNSEL : DEJ Ryan/C Champion (Appellant) TD Blackburn (Respondent) SOLICITORS : Gadens Ridgeway (Appellant) Blake Dawson Waldron (Respondent) CATCHWORDS : Constructon of document - no question of principle DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40213/97 MASON P MEAGHER JA POWELL JA Tuesday 25 May 1999 ANTHONY MICHAEL PAOLA v OCE COPYING EQUIPMENT PTY LTD JUDGMENT 1 MASON P: This appeal has been well argued. Mr Ryan, in his written and oral submissions, has advanced everything that can be put on behalf of the appellant but I am of the view that the appeal should be dismissed. 2 The appellant was found liable under a guarantee executed on 26 September 1992 in favour of the respondent in relation to goods sold and delivered to Condor OA Pty Limited. I am grateful to adopt the summary of facts in Judge Knight's reasons for judgment. 3 With one exception, the grounds of appeal essentially re-agitate defences that were raised below. In my view it is appropriate to adopt the reason for rejecting them in the careful and detailed judgment of the learned trial judge. 4 On the critical issue it is common ground that the relevant legal principles are as stated by Gibbs CJ in Hospital Products Limited v United States Surgical Corporation [1984] 156 CLR 41 at 61-2 and by Herron J in C J Grais and Sons Pty Limited v F Jones and Co Pty Limited [1962] NSWLR 22 at 26-7. 5 The appellant points to evidence that he asserted the importance of ninety days consignment terms when negotiating the Adelaide and Victorian dealership arrangements. This may be so, but it does not compel a finding that the respondent committed itself to this position irrevocably as a term of the guarantee. The manner in which Mr Mackay expressed himself in this matter (see appeal book pp 61-2), the timing in relation to the critical guarantee, the express terms of the consignment stock agreements and the absence of the critical warranty in the written guarantee all reinforce the trial judge's conclusion that Mr Mackay's statements did not become part of the contractual guarantee. 6 As Mr Ryan frankly and properly conceded, the warranty propounded by the appellant had to go so far in its effect as to stipulate that if and when the respondent withdrew the ninety day consignment arrangement, then the guarantorould be forthwith discharged, regardless of the dealings between the creditor and principal debtor that gave raise to the guarantor's liability at that point of time. The patent unlikelihood of such a term being acceptable is a further reason why I am not satisfied that the requisite intention to contract existed as an objective fact. 7 In any event,there was no subsequent breach of the putative term on the respondent's part for the reasons at AB357A-358. Condor OA Pty Limited did not stay within its credit terms and this, in my view, would have precluded reliance upon the putative warranty in answer to an action on the guarantee. 8 The appellant seeks to raise a new ground said to be one of construction on the written guarantee. The parties to that agreement were Oce Copying Equipment Pty Limited and Oce Australia Limited on the one part, and the appellant on the other. The two Oce companies have a common registered office. The agreement uses the shorthand expression "Oce" to refer to them. In this context this expression should be read distributively with the consequence that the supply by one, other or both of the companies would enliven the guarantee. In any event I would uphold the respondent's submission that the late raising of this point is precluded by the well known principles which prevent the raising of fresh issues on appeal, if there was a possibility that had the point been taken below, evidence might possibly have been called to rebut it. 9 In my view the appeal should be dismissed with costs. 10 MEAGHER JA: I agree. 11 POWELL JA: As do I. 12 MASON P: That is the order of the Court. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.