Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459 Hearing dates: 4 September 2013 Decision date: 19 December 2013 Before: Macfarlan JA at [1]; Meagher JA at [2]; Barrett JA at [50] Decision: (1) Appeal allowed. (2) Orders 2, 4, 5, 6, 7 and 8 made by Adams J on 22 April 2013 be set aside. (3) Order that order 3 made by Adams J on 22 April 2013 be varied by omitting the reference to "paragraphs 5 & 7" and substituting therefor "paragraph 5". (4) Judgment for the appellant against the respondent in the sum of $1,724,498.50 (being $1,697,994.60 together with interest from 5 September to 20 December 2013 at a daily rate of $247.70). (5) Order the respondent to pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - management and administration - Corporations Act 2001 (Cth), ss 128, 129 - guarantee executed by respondent company signed by two directors - signature of one director forged - whether appellant able to rely on assumption in s 129(5) that guarantee signed in accordance with s 127(1)(a) - whether appellant had "dealings" with respondent company - whether person dealing on behalf of company required to have actual or ostensible authority to enter into transaction which is the subject of the assumption Legislation Cited: Companies (NSW) Code, s 68A Companies (Vic) Code, s 68A Corporations Act 2001 (Cth), ss 126, 127, 128, 129 Cases Cited: Armagas Ltd v Mundogas SA [1986] 1 AC 717 Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] HCA 49; 133 CLR 72 Freeman & Lockyer v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480 Lysaght Bros & Co Ltd v Falk [1905] HCA 7; 2 CLR 421 Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2001] NSWSC 448; 38 ACSR 404 Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; 170 CLR 146 Pico Holdings Inc v Wave Vistas Pty Ltd [2005] HCA 13; 79 ALJR 825 Soyfer v Earlmaze [2000] NSWSC 1068 Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 Category: Principal judgment Parties: Australia and New Zealand Banking Group Ltd (Appellant) Frenmast Pty Ltd (Respondent) Representation: Counsel: D L Cook (Appellant) R W Tregenza, P Macarounas (Respondent) Solicitors: Norton Rose Australia (Appellant) Licardy & Company, Edgecliff (Respondent) File Number(s): 2012/365548 Decision under appeal Jurisdiction: 9111 Citation: ANZ Banking Group Ltd v Tiricovski [2012] NSWSC 1304 Date of Decision: 2012-10-28 00:00:00 Before: Adams J File Number(s): 2010/137578