Temperzone Australia Pty Ltd v Amabile [2016] NSWSC 1197

Supreme Court New South Wales

Medium Neutral Citation: Temperzone Australia Pty Ltd v Amabile [2016] NSWSC 1197 Hearing dates: 10 August 2016 Date of orders: 30 August 2016 Decision date: 30 August 2016 Jurisdiction: Common Law Before: Hall J Decision: (1) The verdict entered for the defendant in Local Court proceedings 2015/156001 on 5 February 2016, is set aside.

(2) The order for costs in favour of the defendant made by the Local Court on 5 February 2016 is set aside.

(3) Judgment is entered in favour of the plaintiff against the defendant in the amount of $38,853.38 together with interest at the rate prescribed by the Uniform Civil Procedure Rules 2005 from 12 August 2013.

See [95] as to costs Catchwords: CONTRACT – appeal from Local Court decision – guarantee arising from a credit application – defendant/director of the company an experienced and sophisticated businessman – defendant separately signed as director of the company on the credit/supply contract and as guarantor

GUARANTEE – test to be applied in determining whether a binding contract of guarantee – defendant's wife filled out the contract – defendant did not read the document before signing – nature of the guarantee not specifically drawn to defendant's attention by plaintiff's sales engineer – no evidence of objective circumstances to support the contention that the defendant did not intend to enter into a contract of guarantee – no duty on behalf of the sales engineer to alert the defendant as to the guarantee and to the fact that the defendant should obtain legal advice – the signature of the defendant objectively manifested the fact that the defendant understood and intended to be bound by the terms and conditions of the guarantee – silence of the sales engineer did not amount to misleading and/or deceptive conduct Legislation Cited: Competition and Consumer Act 2011 (Cth) Local Court Act 2007 Uniform Civil Procedure Rules 2005 Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481 Druin Pty Ltd v Corbin [2014] NSWSC 510 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 Jaksic v Yim [2011] NSWSC 962 Kimberley NZI Finance Limited v Torero Pty Ltd (1989) ATPR 46-054 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; 241 CLR 357 Petelin v Cullen [1975] HCA 24 at [12]; 132 CLR 355 Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909 Category: Principal judgment Parties: Temperzone Australia Pty Ltd (Plaintiff) Mark Robert Amabile (Defendant) Representation: Counsel: M Sahade (Plaintiff) C Bolger (Defendant)