Ramsay Health Care Australia Pty Limited v Adrian Compton - [2015] NSWSC 163 - NSWSC 2015 case summary — Zoe

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Ramsay Health Care Australia Pty Limited v Adrian Compton

[2015] NSWSC 163

Supreme Court of NSW|2015-02-23|Before: Hammerschlag J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-02-23

Before

Hammerschlag J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Solicitors: Minter Ellison - Plaintiff Aleco Vrisakis - Second Defendant File Number(s): 2014/164906

[2]

INTRODUCTION

HIS HONOUR: The plaintiff (or Ramsay) sues the second defendant (or Mr Compton) for $9,810,312.33 as at 19 February 2015 pursuant to a Guarantee and indemnity which Ramsay claims Mr Compton provided in respect of the obligations of the first defendant company (Medichoice) to Ramsay under a Distribution and Group Purchasing Agreement (the Agreement) which Ramsay and Medichoice entered into in November 2012.
Ramsay alleges that on 8 November 2012 Mr Compton bound himself as guarantor in its favour on the terms of a written instrument entitled Guarantee and indemnity (the Guarantee).
Clause 3.1 of the Guarantee provides that the Guarantor irrevocably and unconditionally guarantees to Ramsay the payment of the Guaranteed Money on time and in accordance with the Agreement. Guaranteed Money is defined to mean all money that Medichoice is or may be liable to pay Ramsay on any account whatever under, in relation to or arising from Medichoice's performance, or purported performance, of its obligations under the Agreement.
On 8 November 2012, Mr Compton appended his signature to a document headed Signing page (the first Signing page). Ramsay itself later signed an electronically transmitted copy of the same page bearing Mr Compton's (electronically transmitted) signature. On 28 November 2012 Mr Compton appended his signature to a second Signing page (the second Signing page) in the same form as the 8 November 2012 version. Ramsay claims that by his signatures Mr Compton bound himself to the Guarantee. Ramsay relies primarily on the 8 November 2012 Signing page, and as a fall-back position on the 28 November 2012 one.

[5]

The first Signing page

On 7 November 2012 at 3.50pm, Kate Robertson sent the following email to Mr Compton: Hi Adrian Thanks for providing signed versions of the Distribution and Group Purchasing Agreement and the General Security Deed. These have been reviewed and are now with Ramsay directors for signing. However, I note that in the Distribution and Group Purchasing Agreement you have signed in your individual capacity but not on behalf of Compton Fellers Pty Ltd. I have attached the execution page of that Agreement and ask that you sign where indicated on behalf of Compton Fellers Pty Ltd and return the signed page by email to me. If Compton Fellers Pty Ltd currently has more than one director, please have another director/company secretary sign also, as required under s127 of the Corporations Act 2001 (Cth). We will insert the additional page into the agreement before returning it to you. Please call me if you have any questions about this. As previously agreed and as required under cl 28.3 of the Distribution and Group Purchasing agreement, Ramsay requires that you urgently provide 2 x signed versions of the Guarantee and Indemnity attached. As discussed this afternoon, if and when the sale of Compton Fellers Pty Ltd completes and Ramsay has been provided with a Guarantee and Indemnity in the same form signed by the directors of the purchasing entity, Ramsay will return the Guarantee and Indemnity to you and do all things required to formally release you from the Guarantee and Indemnity. I would suggest (as is usual practice where a guarantee is given) that you make it a condition of the completion of any sale that a signed Guarantee and Indemnity is provided to you on or before completion, so that there is no delay to your release. Please provide a signed Guarantee and Indemnity by return email to me as soon as possible so that there is no delay in the return of the above documents and return the 2 x originals to me by express post, so that the Guarantee and Indemnity can be executed by Ramsay and returned to you. Please call me if you have any questions regarding the above. Best Regards, Kate
It is not in dispute that the "Guarantee and Indemnity attached" was the Guarantee, including (a then unsigned) Signing page.
Later that same day, Mr Compton emailed Kate Robertson: Good afternoon Kate, Thank you for the detailed response and the telephone call this afternoon. I will action as per your email below. Adrian
And she replied: Thanks Adrian Best Regards, Kate
On 7 November 2012, Mr Compton signed a "Declaration by Guarantor", witnessed by a solicitor, Jennifer McDermott, in the following terms: I, Adrian John Compton (declarant), of Unit 2, 53A Shadforth Street, Mosman NSW 2088 DO SOLEMNLY AND SINCERELY DECLARE AS FOLLOWS: 1. I am the guarantor named in certain loan and security documents between Compton Fellers Pty Limited (trading as Medichoice) (borrower) and Ramsay Health Care Australia Pty Ltd (lender) including: (a) Distribution and Group Purchasing Agreement between the lender and the borrower (Distribution and Group Purchasing Agreement): and (b) Guarantee and Indemnity between the lender and the declarant (Guarantee Indemnity). 2. I have received independent legal advice regarding the loan and security documents referred to in paragraph 1. 3. After receiving the advice I have freely and voluntarily signed the following documents: (a) Distribution and Group Purchasing Agreement; and (b) Guarantee and Indemnity. AND I MAKE THIS SOLEMN DECLARATION conscientiously believing the contents to be true and by virtue of the Oaths Act 1900. SUBSCRIBED and DECLARED by the Said declarant at this [7th] day of [November] before me [signed] [Jennifer McDermott] Solicitor Certificate under section 34(1)(c) of Oaths Act 1900 I [Jennifer McDermott], a [solicitor] certify the following matters concerning the making of this statutory declaration by the person who made it: (i) I saw the face of the person (ii) I have not known the person for at least 12 months, but I have confirmed the person's identify using an identification document and the document I relied on was Qld drivers licence No 013381505 Signature of authorised witness [Jennifer McDermott] Date [7/11/12]

[6]

The second Signing page

On 16 November 2012 at 11.15am, Kate Robertson emailed Mr Compton and others including Paul Fitzmaurice and Anna Stevis as follows: Hi Adrian, Confirmation of Documents received We confirm receipt of emailed copies of: 1. The Distribution and Group Purchasing Agreement execution page (as requested in my email of 7 November 2012) 2. The executed Side letter (as requested in Paul's email of 8 November 2012) 3. The Guarantee and Indemnity And Originals of: 1. The Distribution and Group Purchasing Agreement; and 2. The General Security Deed Fully Executed Documents Please find attached copies of the: 1. Fully executed Distribution and Group Purchasing Agreement; and 2. The General Security Deed executed by Ramsay. A copy of the Guarantee and Indemnity will also be returned to you by email and post once signed by Ramsay directors, which I hope will be today. The originals will be sent to you by post, please advise the best address for this. We assume that you do not need a further copy of the executed Side letter, but please advise if so and I will email this to you. Further Documents Required In order that we are able to register the security documents as discussed we need the originals of the following documents to meet signing requirements. Can you please post to me 3 x originals of: 1. The Guarantee and Indemnity; 2. The General Security Deed, signed by 2 directors of Compton Fellers P/L (currently one signature and the Corporations Act requires 2 signatories if there is more than 1 director). Or if you'd prefer, just post me 3 originals of the execution page and I will print the remainder of the documents and attach. Can you please also post to me 1 x originals of: 3. The Declaration by Guarantor (referring to both the Guarantee and Indemnity and the General Security Deed) Please confirm when these documents have been posted and call me if you have any questions. Thanks and Regards, Kate
On 16 November 2012 at 3.05pm, Anna Stevis emailed Mr Compton (forwarding Kate Robertson's 11.15am email): Hi Adrian Hope all is well. Have you sent through the originals? If not can you please do so as a matter of priority.
Mr Compton responded at 3.57pm: Anna, can you pls handle.
At 5.46pm Mr Compton emailed Anna Stevis responding to her 3.05pm email: Yes Anna, you should have them by now. They went to Warriewood. Have a great week-end. Adrian
On 23 November 2012, Kate Robertson emailed Anna Stevis, Mr Compton and Paul Fitzmaurice: Hi Anna, As requested, please find attached copies of the following: 1. Declaration by Guarantor; 2. Execution page of Guarantee and Indemnity (blank version - to be signed by Adrian where marked, in the presence of a witness) 3. Execution page of the General Security deed (blank version - to be signed on behalf of Compton Fellers Pty Ltd by Adrian and another director or the company secretary of Compton Fellers Pty Ltd, if there currently is one) You said that the originals of some of these documents are missing, so you intend asking Adrian to re-sign 3 of each of the attached documents, the originals of which will be posted to me so that we can register the securities. As discussed, we cannot register copies so we'll need the originals. Please post these to: Kate Robertson Corporate Counsel Ramsay Health Care Level 9, 154 Pacific Highway St Leonards NSW 2065 If you find the original Declaration by Guarantor (the version without the reference to the Guarantee and Indemnity) please send me that original rather than re-signing. I undertake to attach the completed execution pages to the agreed versions of the Guarantee and Indemnity and the Security Deed (the versions to my email of 3 October 2012) and return fully executed versions of each agreement to you (ie the above and the original Distribution and Group Purchasing Agreement) as soon as I receive the original documents. Please call me if this isn't clear or if you have any questions. Best regards, Kate
Anna Stevis then emailed Mr Compton: Hi Adrian Sorry to do this to you but can you please print 3 copies of each document attached sign and post back to Unit D 5 Jubilee Ave Warriewood NSW 2102 to my attention. If you can please do this as a matter of urgency it would be appreciated.
And Mr Compton replied: Anna No worries, can you send me which documents please. Thank you Adrian
Anna Stevis finally emailed Kate Robertson: Thanks Kate Anna Stevis
On 28 November 2012, Mr Compton appended his signature to the second Signing page, witnessed by Jennifer McDermott. He also signed another Declaration of Guarantor before Jennifer McDermott in the same form as the one attested by her on 7 November 2012.
The same day, Mr Compton emailed Anna Stevis: Anna, All signature pages are in the overnight mail. You will have everything tomorrow. Cheers Adrian
On 4 December 2012, Kate Robertson emailed Mr Compton, Anna Stevis and Paul Fitzmaurice: Hi Adrian, Can you please advise when I will receive the attached signed originals as per the email below? I would like to register the securities as required and to return fully executed originals of all documents to you, which are currently sitting on my desk. Please call me if you have any questions re the signing of these pages or this email. I look forward to hearing from you. Cheers, Kate
Later the same day, Anna Stevis emailed Kate Robertson: Hi Kate I have all originals but am currently on leave. Will bring with me at our meeting on the 12th December. Regards Anna
On 29 October 2013, Ramsay's solicitors made demand of Medichoice and Mr Compton (under the Guarantee) of the amount then outstanding under the Agreement.

[8]

MR COMPTON'S EVIDENCE

In accordance with directions of the Court, Mr Compton swore and filed an affidavit on 24 November 2014.
Mr Compton's evidence at the trial consisted of his own affidavit and the tender of some documents. Affidavits by Jennifer McDermott dated 19 November 2014 and Anna Stevis dated 21 November 2014, were filed and served but not read.
Mr Compton's affidavit was read without him being required for cross-examination due to his apparent indisposition when the hearing commenced. He was not in New South Wales but was apparently in Queensland (where he lives) having medical treatment. The Court having refused an application by him to vacate the hearing, Ramsay elected to proceed on the basis that his affidavit be read without Mr Compton having to be available for cross-examination.
He deposes to having been diagnosed in about 2002 with Major Depressive Disorder and Bipolar II Disorder.
He says that he understood that the "Director's guarantee" was to be a personal commitment to be given by him as a director of Medichoice, that Medichoice would fulfil its obligations to Ramsay but would not expose him to personal liability for moneys owed by Medichoice to Ramsay and that the only security for the performance of obligations of Medichoice under the Agreement would be a charge in favour of Ramsay over the assets of Medichoice, which he understood to comprise the inventory or stock paid for by Ramsay. He says that at no time did he agree to there being any other security. He says that on a number of occasions of which he does now not have specific recollection he said to Paul Fitzmaurice, Kate Robertson and Paul Dickson (a consultant to Ramsay) that he would not sign a guarantee that made him personally liable for liabilities of Medichoice to Ramsay.
He says that he received from Kate Robertson on a number of occasions a Guarantee and indemnity document but did not at any time agree to sign a document that he understood would impose personal liability on him for liabilities of Medichoice to Ramsay.
He says that during the 7 November 2012 conference call Kate Robertson said words to the effect: "The Guarantee and indemnity required by Ramsay is over the assets of Medichoice."
He says that subsequent to this call (but he does not identify when) Kate Robertson said words to the effect: "I am under pressure to get the documents signed. It will be easier for me to just get signing pages signed by you, which will be attached to the guarantees over the assets of Medichoice."
He says he recalls signing a Declaration by Guarantor which in the presence of Anna Stevis he struck out the reference to Guarantee and indemnity but does not have a copy of it. He gave it to Anna Stevis to give to Kate Robertson and did not keep a copy.
He says the reason why there are two Signing pages and two Declarations by Guarantor is that Kate Robertson lost the first pages he had signed.
He says he signed the Signing pages and Declarations of Guarantor intending and believing that they were for the security to be given by Medichoice to Ramsay over the stock paid for by Ramsay and that the blank Signing pages appear to have been placed by Ramsay without his authority, consent or knowledge behind copies of the Guarantee.
He says Ramsay never gave him the original or a copy of the Guarantee.
He says that in the course of his discussions with Paul Dickson, Paul Dickson said that he would not purchase the business if he had to give Ramsay a personal guarantee.

[10]

Signature

A contract is formed when a reasonable person would believe that, based on their words and behaviour, the parties intended to contract. This is an objective test, which in most cases can be administered by determining whether there has been an offer by one party to be bound on certain terms accompanied by an unqualified acceptance of that offer communicated by the other party to the offeror. See generally: Paterson, Robertson, and Duke, Principles of Contract Law, (4th ed 2011, Thomson Reuters) at [1.15] and [12.10]; J W Carter, Contract Law in Australia, (6th ed 2013, LexisNexis Butterworths) at [3.06].
The act of signing a document known and intended to affect legal relations is an act that which itself ordinarily conveys a representation to a reasonable reader of the document that the signatory has either read and approved its contents or is willing to take the chance to be bound by them whatever they might be: Toll (FGCT) Pty v Alphapharm Pty Ltd (2004) 219 CLR 165 at 180 - 181.
The general rule (sometimes referred to as the rule in L'Estrange v Graucob) is that a party will be bound by the terms contained in a contractual document he or she has signed regardless of whether or not the party has read or understood it or understood the terms: L'Estrange v F Graucob Ltd [1934] 2 KB 394.
The rule in L'Estrange v Graucob does not apply where a signatory establishes the plea of non est factum. The plea (meaning "it is not made" or "it is not my deed") is available where the party did not sign at all and in a limited range of circumstances where it was signed.
The Guarantee incorporating a Signing page was sent to Mr Compton under the cover of Kate Robertson's email of 7 November 2012. The description Guarantee and indemnity used in that email refers to the Guarantee. Ramsay's requirement was for him to provide "signed versions" of that instrument and return them by email. On the same day, Mr Compton responded that he would action as per the email. He unequivocally communicated his agreement to comply with Ramsay's requirement that he sign the Guarantee. His acceptance was, in turn, acknowledged by Kate Robertson in her following email.
On 7 November 2012, in the presence of a solicitor Mr Compton solemnly and sincerely declared that he was the Guarantor under the Guarantee and indemnity between Medichoice and Ramsay and that he had received independent advice regarding that instrument and after having received that advice had freely and voluntarily signed the Guarantee and indemnity. No other instrument satisfying that description had been sent to him. Indeed there is no evidence that any instrument satisfying the description of the type of guarantee he says he was prepared to give having been brought into existence.
Attached to the Agreement, which Mr Compton signed, was a General security Deed. That Deed defines "Director's Guarantee" to mean "the document titled 'Guarantee and indemnity' dated on or about the date of this document between the Secured Party and Adrian John Compton". The Guarantee satisfies this description.
In her email of 16 November 2012, Kate Robertson acknowledged receipt of an emailed copy of the Guarantee from Mr Compton. The evidence does not establish when it was received, the transmitting email not being in evidence. Kate Robertson informed Mr Compton that a copy of the Guarantee and indemnity would be returned by email and post once signed by the Ramsay directors and the originals would be sent to him by post. The first Signing page bears Mr Compton's electronically transmitted signature and also original signatures of the Ramsay directors. It is clear that Mr Compton returned that Signing page together with the Guarantee to Ramsay.
In the same email, Kate Robertson asked Mr Compton to email three originals of the Guarantee and indemnity. Later that day Anna Stevis asked him by email whether he had sent through the originals. His responsive email was that he had and that they had gone to Warriewood (where Medichoice's business was). There was no suggestion from Mr Compton that there was any difficulty with respect to the Guarantee. His outward behaviour is consistent only with a belief that he had executed it by then.
On 23 November 2012, Kate Robertson sent a further execution page for the Guarantee and indemnity for Mr Compton's signature. She recorded that Anna Stevis said that the originals of some of the documents were missing. Kate Robertson recorded that Anna Stevis intended asking Mr Compton to re-sign three each of the attached documents (these included the Declaration by Guarantor and a further execution page of the Guarantee). Again the reference to Guarantee and indemnity could only be the Guarantee now relied on by Ramsay.
Anna Stevis emailed Mr Compton asking him to print three copies of each document (being the documents sent through by Kate Robertson - including a new Signing page) and asking him to post them back. He emailed his agreement to do so. Consistent with his agreement, he signed another Signing page in the presence of Jennifer McDermott on 28 November 2012. He emailed Anna Stevis that all Signing pages were in the overnight mail. On 4 December 2012, Kate Robertson emailed Mr Compton and Anna Stevis enquiring about the originals. Anna Stevis replied that she had the originals but was currently on leave. In the proceedings Ramsay produced the original of the second Signing page. It must have been handed over to Ramsay.
Objectively viewed, both Signing pages were assent by Mr Compton to the Guarantee. The second Signing page was signed for no other reason than that the first Signing page with his original signature had been lost.
I observe that whilst Mr Compton says that the blank Signing pages appear to have been placed by Ramsay without his authority, consent or knowledge, behind the Guarantee, nowhere in his affidavit does he say that when he signed the first Signing page it was not together with the Guarantee. Additionally, in her email of 23 November 2012, Kate Robertson undertook to attach the completed execution pages of the Guarantee and return the fully executed version to him. He did not demur. Rather, he proceeded to execute the second Signing page and have the original delivered back to Ramsay.
If it were necessary I would make a finding that the evidence establishes subjective intention on the part of Mr Compton to bind himself to the Guarantee.

[11]

Non est factum

In Petelin v Cullen (1975) 132 CLR 355 at 359 - 360 the High Court, in an often cited passage, said: The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy to precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one "which must necessarily be kept within narrow limits" (Muskham Finance Ltd v Howard [1963] 1 QB 904 at 912; [1963] 1 All ER 81 at 83) and in the qualifications attaching to the defence which are designed to achieve this objective. The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v Anglia Building Society [1971] AC 1004, especially at 1019; [1970] 3 All ER 961 at 965-6.
Where mental infirmity is in question, the defence of non est factum must be distinguished from the defence that the instrument is voidable by reason of mental incapacity. Such a plea does not deny the execution of a document, but assumes the execution. It concedes that the mind, such as it was, went with the act of execution, but it asserts that the state of mind was such that if the other contracting party were aware of it that party ought not be allowed to insist upon the contract. The basis of the defence of non est factum is that in truth the document was not executed at all; PT Limited v Maradona Pty Ltd (1992) 25 NSWLR 643 at 673 and following.
Mr Compton asserts no disability, educational or otherwise, which rendered him unable to read or reliant upon anyone else for advice.
He does not say, and it is not suggested, that he did not read the Guarantee which Ramsay required.
To the contrary, he twice signed a Declaration of Guarantor, upon which Ramsay was entitled to rely, that he had received independent legal advice regarding it and had freely and voluntarily signed it.
He says that he signed the Signing pages intending and believing that they were for the security to be given by Medichoice to Ramsay over the stock paid for by Ramsay, but he does not explain how, after receiving the documents, he had such an intention and belief. He signed, understanding that his actions had legal consequences with respect to the giving of security. His minutes of the 7 November 2012 telephone conference reflect an understanding that he had to sign all documents required by Ramsay to get the extension he needed to negotiate with Paul Dickson.
On his own evidence, his mind went with his signature.
His case rises no higher than his ipse dixits that he told Ramsay (at an unspecified time) that he would not sign a guarantee making him personally liable; that he did not agree to sign a document that he understood would impose personal liability on him (but without saying that he did not understand that the Guarantee did so); and that Kate Robertson said that the Guarantee required by Ramsay was over the assets of Medichoice (but without saying that he did not understand the Guarantee to entail more).
The difficulty is that he acted contrary to what he asserts was his position.
At its highest, his complaint is that notwithstanding his declarations that he received legal advice, he was mistaken as to the legal effect of the contract to which he consciously committed himself.
But he asserts no operative misrepresentation or vitiating mistake. He asserts no unconscionability or misleading or deceptive conduct. He pleads no estoppel on Ramsay's part. He brings no cross-claim seeking relief under the Contracts Review Act 1980 (NSW) or rescission of the Guarantee.
The evidence does not establish that he was in any way misled by Ramsay, or, that in committing himself, he relied on anything inaccurate conveyed by Ramsay. Ramsay did require, and got, security over Medichoice's assets by way of general Security Deed which Mr Compton himself signed in addition to the Guarantee.
Mr Compton's evidence that Kate Robertson said that she was under pressure to get the documents signed and it would be easier for her to get Signing pages attached to the Guarantees over the assets of Medichoice is somewhat difficult to understand. It clearly conflates the Guarantee with the general Security Deed but, in any event, it must be a reference to the second Signing page. The issue of re-signing only arose because the first originals were lost.
The plea of non est factum fails.

Ramsay Health Care Australia Pty Limited v Adrian Compton

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