The primary judge did not refer to this evidence. It was the first time Nelia had suggested that Maria had guaranteed the three earlier loans totalling $75,000.
23 So far as the events at the casino with respect to the signing of the statement were concerned, Maria's account in chief is set out at [37] of his Honour's judgment. In essence, Maria's version of the conversation was that Nelia had requested her to sign the statement "as a witness that I have given Emily $100,000". Maria maintained that Nelia needed her signature as she was applying to get a loan from St George Bank. Maria denied that she read the document, asserting that although she had her spectacles with her, she could not read the document without a magnifying glass as her eyesight was not good enough for that purpose because she had cataracts. On the other hand, Ms Posada, whose evidence his Honour set out at [38], deposed that she saw Maria read the documents and, in cross-examination, said that she read them for "maybe three minutes".
24 In cross-examination Maria denied that Nelia had told her that the purpose of the document was to record what had been said in the conversation on the way to the Commonwealth Bank in August 2004 and maintained that it had been portrayed only as a statement that she was present when the money was lent to Emily. She also maintained that the document was at all times folded in a somewhat elaborate manner (which she demonstrated) so that she could not see its contents.
25 The primary judge did not make any specific finding as to whether Maria read the statement or not. Nor did he make any finding as to whether her eyesight was sufficient for her to do so. His observations with respect to this issue were somewhat equivocal:
"42 Maria does not deny that she signed the document produced to her by Nelia. She does say, however, that her eyesight was poor at the time and that she needed a hand-held magnifying glass to read fine print (she has since had operations for cataracts). She was equivocal in her answers as to whether she could read the particular document while wearing the glasses she had at the time. She first accepted that she could because it was 'the bigger print' but afterwards sought to resile from that."
26 The primary judge then assessed the evidence "as a whole" at [44] to [55]. With respect to the conversation between the time the parties left Mr Acar's office and the time they arrived at the Commonwealth Bank, his Honour said:
"45 Nelia had just been advised by Mr Acar not to lend more money to Emily without getting a guarantee supported by a mortgage. It is clear that Nelia chose not to act in accordance with Mr Acar's advice. She would have understood him to be referring to a need for legal documents of guarantee and mortgage. She did not follow that course. The course she in fact took involved either a choice by her to lend only after receiving from Maria oral promises of a contractual kind in or to the effect of those stated in Nelia's affidavit; or a choice to lend after having received some lesser form of reassurance by her old and trusted friend Maria."
27 At [46] his Honour considered that of the two choices referred to above, the second was the more likely. He considered that the
"concept of Maria's 'guaranteeing … that Emily is going to pay' is readily construed as involving an expression by Maria of confidence, perhaps certainty, as to Emily's future conduct as distinct from any direct promise by Maria as to her own future conduct."
28 Further, at [59] his Honour found that
"the inference that Maria spoke words such as to give rise to a promise to Nelia to answer for the debts of Emily is but faintly available on the whole of Nelia's own evidence. I say this having regard particularly to her acknowledgment in cross-examination that, at the time of the conversation on the way to the Commonwealth Bank, she was not thinking of 'legal implications', coupled with the several indications that she was concerned to receive reassurance from Maria of Emily's own capacity to pay."
29 I pause to observe that even if Nelia was not thinking of "legal implications", it was also relevant whether Maria had the relevant intention, objectively ascertained, to enter into a contractually binding promise to Nelia.
30 Earlier at [47] the primary judge had observed:
"It seems to me clear that Nelia decided not to follow Mr Acar's advice and was content to rely on her old and trusted friend for reassurance. The reassurance, however, took the form of statements by Maria that Emily should and could be trusted and could be relied upon to pay. In the context, no great significance can be attached to the word 'guarantee': a statement by Maria to the effect, 'I guarantee that Emily will pay you' should, I think, be regarded in the context as a statement by Maria of her firm or certain belief that Emily would pay."
31 It is not clear from the foregoing whether his Honour actually accepted Nelia's version of the conversation on the way to the Bank at least insofar as it alleged that Maria used the word "guarantee" or some derivative thereof. It should be noted that the conversation took place in part in Filipino and in part in English. That the English word "guarantee" was used can not be assumed, although the statement did use the word "guaranty" which suggests that, if there was reference to a guarantee, the English word was used.
32 Rather, it would appear from the foregoing that his Honour assumed that Maria used the word "guarantee" during the course of that conversation, the issue being the manner in which it was used, if it was. Was Maria promising that if Emily did not pay, Maria would; or was she merely reassuring Nelia that Emily would pay in the sense that she was confident or certain that she would?
33 After referring to a number of other factual matters, the primary judge then made the following finding:
"55 In the result, I am of the opinion that Nelia has failed to show that the events on the day of the visit to the Commonwealth Bank gave rise to a contractual promise given by Maria to Nelia to answer for the indebtedness of Emily. Nelia sought and was given by Maria reassurance that Maria was aware of Emily's existing indebtedness and the proposed further advance; and that Maria, as Emily's mother, was confident that Emily would pay. But there was no intention on the part of either Nelia or Maria that there should be a contractual relationship between them."
34 Up to this point his Honour had not referred to the statement signed by Maria at the Sydney Casino on 15 May 2005. At [56] his Honour observed that
"the document cannot be regarded as written confirmation of any contractual commitment actually assumed by Maria in early August 2004."
35 The critical parts of the statement were as follows:
"I am fully aware that Nelia agreed to lend Emily the money, because she trust and respect me and because I made a personal guarantee against whatever assets I have (personal or real), to back up the loan being sought for. I did convince Nelia to lend the money and assured her not to worry, because Emily will return all monies owing to her within two weeks from the day my daughter Emily receive the money.
…
Nelia expressed her concern that she has no means to pay back the money being taken out from her line of credit over her property, if Emily cannot pay on time, but I have given her my word that Emily will pay it back on time;
To ensure and to erase any doubts and give her peace of mind, Emily and I suggested to her to place a CAVEAT on our property at Kurnell as security."
36 At [56] his Honour set out the first sentence of the above extract. He then said:
"57 There has been no suggestion in this case that such a rationale or motivation attended loans to Emily before that of August 2004. The sole assertion Nelia makes is that she was persuaded to advance the final $100,000 by promises made or assurances given to her by Maria.
58 In any event, the document signed by Maria at the casino - whether or not read and understood by her - could not of itself operate as a guarantee because any promise it contains is unsupported by consideration. There was not, at that time, any further advance, forbearance to sue or other act or forbearance of Nelia in return for which such a promise was given. On analysis, however, the document does not appear to be a vehicle by which any promise is given. It is merely a purported record of past events."
37 It was common ground that the statement did not of itself constitute a guarantee, which would in any event be unenforceable for the reasons set out by his Honour at [58] and which were not the subject of contest. Both parties accepted his Honour's description of the statement as being "a purported record of past events".
38 The difficulty, however, is that as such a record it was capable, if its contents had been read and understood by Maria, of constituting an acknowledgement by her as to the circumstances surrounding the agreement of Nelia to lend Emily the further sum of $100,000 in August 2004 including the intention of Maria, objectively ascertained, to contractually bind herself to pay the subject indebtedness in the event that Emily failed to do so. That capability is underlined by the reference to placing a caveat on "our property at Kurnell as security", indicating a commitment of Maria's property to repayment of the loans.
39 It is true, as noted at [34] above, that at [56] of his judgment the primary judge considered that
"the document cannot be regarded as written confirmation of any contractual commitment actually assumed by Maria in early August 2004."
40 It would appear that his Honour was of that view notwithstanding the first sentence of that part of the statement that I have extracted at [35] above.
41 Further, in my respectful opinion, it was necessary for his Honour to have made a finding as to whether Maria did in fact read and understand its contents. If she did not, then without deciding the question, the primary judge's findings of fact, and his view that Maria did no more than reassure Nelia that Emily would pay, might be difficult to challenge. On the other hand, if she did, then it was necessary for his Honour to take that fact into account when assessing the affidavit and oral evidence of each of Nelia and Maria. His Honour seems to have put it to one side as being irrelevant to that exercise.
42 It seems to me that having come to the conclusion that Maria was doing no more than "guaranteeing" that Emily would repay her indebtedness to Nelia, his Honour was not prepared to, in effect, reconsider that view in the light of the contents of the statement even upon the assumption that it had been read and understood by Maria. Furthermore, his Honour's observation that the document could not be regarded as written confirmation of any contractual commitment actually assumed by Maria in early August 2004 fails to take into account, when considering the first sentence of that part of the statement which I have extracted at [35] above and which his Honour also extracted at [56] of his judgment, the last two sentences of the document. The second last sentence was in relation to the placing of a caveat on "our property at Kurnell as security"; and the last sentence stated that the "guaranty therein" was to "be binding upon and inure to the benefits of the parties and their heirs". To me these seem to be words capable of constituting an acknowledgment that the guarantee earlier referred to in the document was, when made, intended to be legally binding.
43 Of course, it is necessary for the whole of the statement to be considered in the light of the totality of the written and oral evidence of Nelia and Maria. Had his Honour found that Maria had read and understood the contents of the statement, he may, and I emphasise may, have come to a different conclusion from that which he came to at [47] of his judgment: see [30] above.
44 For the foregoing reasons, in my opinion his Honour erred in, first, failing to make a finding as to whether Maria read and understood and thereby acknowledged the contents of the statement; and, second, if he had so found, considering the contents of the statement in the light of the evidence in total. The foregoing is not to suggest that at the end of the day a different conclusion from that determined by the primary judge would necessarily be arrived at. However, in the circumstances, the primary judge was in error in failing to consider the effect of the statement in relation to the competing evidence of Nelia and Maria. If the statement had been read and its contents understood by Maria, it was important evidence with respect to crucial issues to be decided: whether the word "guarantee" was said and whether, if it was said, it was intended to effect a contract of guarantee (see State Rail Authority v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 73 ALJR 306; (1999) 160 ALR 588 at 607 [63]-[64]; and Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 at 258 [31]). Regrettably, that error can only be rectified by ordering a new trial.
45 For completeness, I refer to the appellant's submission that his Honour also erred in failing to draw an appropriate inference against Maria in relation to her failure to call Emily to give evidence in her defence, in light of the fact that Maria and Emily were still in touch and so Emily was an available witness within the meaning of the principle established by the High Court in Jones v Dunkel (1959) 101 CLR 298; see also Manly Council v Byrne [2004] NSWCA 123 at [45]-[59].
46 His Honour considered that in the light of his findings, the absence of evidence from Emily could not form a basis for drawing an inference that Maria spoke words such as to give rise to a contractually binding promise to Nelia to answer for the debts of Emily.
47 In the circumstances it is inappropriate to make any comment as to the correctness of this submission given my conclusion that there should be a new trial and the question of whether Emily gives evidence or not will no doubt again arise at that time.