For these reasons, I conclude that Barry Andrews was a party to the Agreement for Provision of Finance.
164 In Bosaid v Andry [1963] VR 465, Sholl J referred to the old case of Macrory v Scott (1850) 5 Exch 906; 155 ER 396 of which his Honour said:
…the defendant signed a suretyship agreement which was sent to him by post, and which referred to "the within deed" as the measure of his liability. When sent to the defendant, however, the document was not attached to the deed, nor was the deed even sent to him. He returned the executed document to his brother, who attached it to the deed and sent it to the plaintiff, the creditor. Parke, B, said at p. 915: "If the defendant chose to trust his brother to annex this instrument to the deed, he is precisely in the same position as if he had signed the memorandum with the deed appended to it, or if the memorandum had been indorsed on the deed and then signed".
165 I think the inference can be drawn, particularly having regard to the threat by Barecall that it would prevent the nightclub on the first floor from opening if, inter alia, the lease documentation was not signed and returned, that the three defendants who signed the execution page (even if it was not then attached to the Variation of Lease) did so thereby authorising Mr Tocchini to attach it to the Variation of Lease (and, perhaps, to negotiate on their behalf any further amendments to the document in accordance with Aqualounge's instructions before so doing) and to submit it to Barecall. However, there is nothing to suggest that by so doing they authorised Mr Tocchini to accept a position contrary to the previous instructions in relation to the equipment clause.
166 The circumstances in which the replacement execution page was submitted to Mr Tocchini make it clear, in my opinion, that what was requested to be signed by the named individuals was a document by which they would agree to guarantee the obligations of Aqualounge under the 2001 Lease as amended. Mr Tocchini understood at the time that this was what was intended.
167 The position was that there was then in place a lease over the basement and ground floor; it had been agreed with Aqualounge that this would be amended to extend the area of the leased premises to the first floor and to incorporate various other provisions; and Barecall was requiring that Aqualounge's obligations under that amended lease be guaranteed. At the very least, Mr Hoban, Mr Rossi and Mr Harvey must have been aware of this. The execution of a page apparently submitted for signature as a page to be affixed to the Variation of Lease, if then provided to Mr Tocchini for the purpose of affixation to the Variation of Lease could arguably manifest an objective intention by those individuals to be bound by the giving of a guarantee on the terms provided for under that document, at least in circumstances where that document had been assented to by Aqualounge, or as an implied grant of authority to Mr Tocchini so as to bind them.
168 Therein, however, lies the problem. Even if the equipment clause issue had not arisen, there was no variation to Article 18 to make provision for a guarantee by anyone other than the original guarantors. What the Variation of Lease did not do was to amend the reference schedule to the 2001 Lease so as to amend the names of the individuals in Item 14 from Messrs Hardy, Hoban and Harvey to those of Messrs Hoban, Harvey, Rossi, Spadina and Lussick.
169 That, of itself, in my view, is fatal to the contractual claim against Messrs Rossi, Spadina and Lussick. This was not a new lease. It was a variation of an existing lease. It has to be read with the 2001 Lease which stands unless and until amended by a later document.
170 Insofar as Article 18 of the 2001 Lease even as amended still identifies only those persons listed in item 14 of the reference schedule as a guarantor, it is submitted by Mr Evans (and I agree) that it cannot be said that it was an express term of the 2001 Lease, as amended, that each of the five defendants guarantee the performance of Aqualounge under that lease.
171 Accordingly, the fact that the Variation of Lease did not in terms make provision to amend Article 18 or the reference schedule to add additional names has the effect that, strictly speaking, any signature by those individuals (other than Mr Hoban) on the single execution page is meaningless because the 2001 Lease, even as varied, did not include a guarantee by any one or more of Mr Rossi, Mr Lussick or Mr Spadina. (It might conceivably have amounted to a separate agreement by the three individuals who did sign it - Mr Hoban, Mr Rossi and Mr Spadina - to give a guarantee in respect of Aqualounge's obligations but no such agreement is pleaded. Its submission as signed clearly, in my view, amounted to a representation by Mr Tocchini, with the implied if not express authority of those three defendants, that they would be party to the varied lease arrangements - and this can only have been in the capacity contemplated as guarantors. However, the lease documentation as varied did not reflect that).
172 It is also submitted, with some force, that any agreement by the three defendants who signed the document to bind themselves to a guarantee in terms of that provided for under Article 18 must have been subject to execution of such a guarantee by the remaining two individuals - which never happened. Thus any agreement or representation to be bound by a contract of guarantee was one it was said falling under either the second or third categories in Masters v Cameron (1954) 91 CLR 353, since the guarantee so contemplated was by a person as one of a number of guarantors (relying upon Marston v Charles H Griffith & Co Pty Limited (1985) 3 NSWLR 294 and James Graham Limited v Southgate-Sands [1986] 1 QB 80. I consider this submission further below.
173 I do not find an express contract of guarantee as pleaded between Barecall and any of Messrs Harvey, Rossi, Spadina or Lussick. While it may well be that a claim could have been brought to rectify the Variation of Lease in order to correct the name of the individual guarantors under the lease, this was not done.
174 (For completeness, I note that it was further submitted by Mr Blank that, where individual defendants have not expressly signed under seal, there is no evidence of consideration passing to them in exchange for the provision of a guarantee. I understood this submission to be to the effect that all co-guarantors needed to be bound in the same capacity. As Article 18 itself would operate as a deed poll, I do not see it as necessary to consider that submission further.)