Sinclair v Camnet Finance Pty Ltd

Background

1. The appellant founded Sinclair Recruitment some years ago, but at the time of these events - 2019 - was an employee of that company working in its Sydney office but was no longer a director. She described herself as the manager of that Sydney office.
2. On 4 August 2017, Sinclair Recruitment entered into a written agreement with the respondent, called a Print Copy Plan, for the supply of various pieces of electronic office equipment including at least one photocopier for the period of 48 months, together with a specified volume of both black and white and colour photocopies. Put simply, the respondent would be paid an agreed rate per page for an agreed number of pages (different rates applied to the black and white and colour pages) billed monthly. The agreement said that the equipment would be located at Sinclair Recruitment's Melbourne office and there were printed Terms of Print Copy Plan.
3. On 22 March 2019 the appellant signed an Order Form and subsequently a "Print Copy Plan Variation" ("PCPV") provided by the respondent and under the heading "Executed for and on behalf of the Customer" (the Customer being described elsewhere in the document as Sinclair Recruitment).
4. Immediately above the appellant's signature on the PCPV was the printed word "Title" after which the handwritten word "CEO" appeared. The appellant's signature was witnessed by an employee of Sinclair Recruitment (who worked at the Sydney office).
5. The PCPV provided that one piece of equipment specified in the original agreement was "deleted" (the serial number of that "deleted" item matched the serial number of one of the items specified in the Print Copy Plan), and another piece of equipment (a photocopier) was listed as "additional goods". The equipment location was specified as Sinclair Recruitment's Sydney office. Further terms included a specified volume of both black and white and colour photocopies together with the charges for each.
6. Thus, the variation was, in substance, to substitute one photocopier for another, and vary the term of the agreement for the new photocopier and the charges for it.
7. The PCPV said that the term was for a maximum of 48 months. It said that the terms of the Print Copy Plan continued to apply unless expressly varied by the PCPV.
8. Part of the PCPV comprised a guarantee, a Privacy Act acknowledgement and a document headed "Print Copy Plan Variation Ten Points You Need To Know". Each were signed and dated by the appellant.
9. From the commencement of the PCPV until early 2020 invoices were issued by the respondent and were paid by Sinclair Recruitment.
10. Between January and March 2020, the respondent issued invoices to Sinclair Recruitment per the terms of the PCPV, but none were paid. Non-payment was one of the "default events" under the terms of the Print Copy Plan.
11. On or about 12 April 2021, Sinclair Recruitment was placed into liquidation, the respondent terminated the Print Copy Plan and PCPV, and called on the guarantee executed by the appellant. The respondent said it was owed $31,164.72 under the guarantee.
12. On 30 April 2021 the appellant commenced proceedings in the Tribunal seeking an order that she was not liable to the respondent.
13. In that application she said she should not have to pay the respondent because she was not a director of Sinclair Recruitment, did not insert the word "CEO" in the PCPV, was not told that the document she signed was a finance document, there was no commencement date on the PCPV, the name on the "contract" was that of Sinclair Recruitment and not herself, that the respondent had also made a claim on Sinclair Recruitment's liquidator and alleged that the respondent was misleading in telling Sinclair Recruitment's office manager that the PCPV would not change the existing Print Copy Plan whereas it started a brand new contract for 48 months.

The Tribunal's Decision

1. The Tribunal's decision was brief. After reciting a summary of the relevant facts, the Tribunal said: "9. Despite a submission made to such effect, there is no evidence of any misleading conduct on the part of the respondent which might provide a sufficient basis for the agreement being held to be unenforceable. 10. A submission was also made on the part of the (applicant) that she was not provided with any financial advice by or on behalf of the respondent about the document or told to obtain independent financial advice before executing the document, and that as a result the guarantee is unenforceable against her. This submission is not accepted. There was no legal obligation for the respondent to provide such advice or direction in the circumstances of this matter. 11. There was also a suggestion made on the part of the applicant of forgery in relation to her signature on the subject documents, but this is not demonstrated upon the evidence. 12. The applicant further submits that if she signed the guarantee document, she did so without reading it and that at no time did she intend to provide a personal guarantee for the financial commitments of the company. 13. However, even if the above assertion was able to be demonstrated upon the evidence and it was accepted that the applicant signed both the finance document and the guarantee document and had her signature witnessed In circumstances where she did not read the documents, a defence of "non es factum" is not available. 14. There is no evidence to indicate that the nature of the document was unclear in any way to such an extent that the applicant could not be seen upon an objective basis to have not reasonably understood what she was signing if she chose to read it. If the applicant elected not to read the document before executing it, this decision was made at her own risk and she cannot be released from liability for the decision."

Grounds of Appeal

1. The appellant did not put forward any ground involving a question of law (for which she had a right of appeal) other than Ground 3. Rather, she sought leave to appeal on the three bases set out in cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
2. That clause says: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
3. The appellant contended that the decision was not fair or equitable, was against the weight of evidence and that significant new evidence had arisen which had not been available at the time of the hearing.
4. More specifically (in her written submissions), the appellant said that: 1. the Print Copy Plan (numbered P991110719) had not been signed by a director of Sinclair Recruitment and therefore the PCPV (numbered VAA112397) was "not applicable to the agreement cited by the respondent"; 2. the appellant was not an officer of Sinclair Recruitment when she signed the PCPV and thus had no legal authority to sign the PCPV; 3. Part 3 of the National Consumer Credit Protection Act 2009 (Cth) applied and, in the circumstances of this case, rendered the guarantee void; 4. the appellant did not write the word "CEO" above her signature and thus the inference should be drawn that she did not intend to be bound personally to the contract.

The Requirements for the Grant of Leave to Appeal

1. The test for the grant of leave to appeal is set out in Collins v Urban [2014] NSWCATAP 17.
2. In short, Collins said that the appellant is required to establish that she may have suffered a substantial miscarriage of justice because of any of the circumstances referred to in Sch 4, cl 12(1)(a), (b) or (c) of the NCAT Act. She is required to establish that there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal.
3. Collins also said that the decision under appeal can be said to be "against the weight of evidence" where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
4. Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 established that the test of whether evidence was not reasonably available is not to be considered by reference to any subjective explanation from the appellant but by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. Something more than the appellant's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
5. In relation to the fresh evidence the appellant sought to tender on this appeal, we were not satisfied that the evidence in question was not reasonably available to the appellant at the time of the hearing and do not accept it on this appeal. Were we wrong in that regard, our conclusions below would not have been any different had we accepted that evidence.
6. In relation to each ground for which leave was required, we were not satisfied that the appellant may have suffered a substantial miscarriage of justice in relation to the matters she identified. In any event, had leave been granted, we would have dismissed each ground for the reasons set out below.
7. We note that the respondent also sought to tender additional evidence. We did not accept the tender of that evidence for the same reason i.e. we were not satisfied that that evidence was not reasonably available to the respondent at the time of the hearing before the Tribunal.

Ground 1

1. The appellant submitted that the Print Copy Plan (numbered P991110719) had not been signed by a director of Sinclair Recruitment and that therefore the PCPV (numbered VAA112397) was not applicable to the agreement cited by the respondent.
2. In oral submissions this was clarified to mean that the Print Copy Plan and the PCPV were not related documents.
3. It does not appear that this argument was raised before the Tribunal as nothing is said about it in the Tribunal's decision. As the point may have been amendable to the calling of evidence by the respondent at the hearing before the Tribunal, we would not allow it to be raised for the first time on appeal.
4. As was pointed out by Mason P, with whom Gleeson CJ and Priestly JA agreed, in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; [1997] NSWCA 214, at 645, the principles to apply when a party wishes to raise a new point on an appeal are those set out in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 at 438 and Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7 - 9.
5. Those principles are that a party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial.
6. In any event, we disagree with the submission.
7. The documents are clearly related as the PCPV provided that one piece of equipment specified in the original agreement was "deleted" and the serial number of that "deleted" item matched the serial number of one of the items specified in the Print Copy Plan).
8. The lack of signature by a director on the Print Copy Plan is not fatal to the respondent's claim. It was signed by someone described as Sinclair Recruitment's Chief Financial Officer and someone held out to be authorised to sign the agreement. After the Print Copy Plan was signed the equipment was evidently received and monthly payments made for some 2½ years until Sinclair Recruitment ceased payments in early 2020. That would be sufficient conduct to amount to ratification of the signing of the Print Copy Plan by Sinclair Recruitment's agent, the Chief Financial Officer.
9. The general principles as to ratification by conduct are set out in Halsbury's Laws of Australia, online edition, at [15-150] as follows (footnotes omitted): "Ratification may be express, whether in writing or oral, or may be implied by conduct, and even where a contract is unenforceable unless evidenced by writing, the ratification need not be in writing. … Ratification must be evidenced by clear and unequivocal acts (or acquiescence) such that they are not open to any other interpretation. Ratification will be effective where it is in terms sufficiently unqualified as to justify the inference that the principal intended to take responsibility for whatever transaction the agent entered on the principal's behalf. …"
10. The receipt of the equipment and payment of monthly invoices for it by Sinclair Recruitment were clear and unequivocal acts that Sinclair Recruitment intended to be bound by the Print Copy Plan.

Ground 2

1. The appellant submitted that she was an employee of the company and not an office bearer. She submitted that regardless of whether she was the founder or not of Sinclair Recruitment, she had no legal authority or standing to sign documents on behalf of the company. She submitted that if an employee can be held accountable for the delivery and agreement of new photocopiers then it would be logical to assume that receptionists would be personally liable for these contracts.
2. The appellant was the manager of the Sydney office. No director worked in that office. She signed it in a section of the document under the words "Executed for and on behalf of the Customer".
3. After she did so the equipment was delivered, and monthly payments made for about nine months until early 2020.
4. In our view Sinclair Recruitment clothed the appellant with ostensible authority to sign the agreement, or, if it did not, ratified the PCPV by receiving the equipment and paying the monthly invoices until shortly before its liquidation.

Ground 3

1. The appellant submitted that Part 3 of the National Consumer Credit Protection Act 2009 (Cth) (and the National Credit Code which is contained within Schedule 2 to that Act) applied and, in the circumstances of this case, rendered the guarantee void.
2. We disagree.
3. That Act, and the National Credit Code, only applies to credit contracts. Credit contracts are defined in s 4 as follows: For the purposes of this Code, a credit contract is a contract under which credit is or may be provided, being the provision of credit to which this Code applies.
4. Under either the Print Copy Plan or the PCPV, there was no provision of credit. In substance, Sinclair Recruitment hired the equipment from the respondent for a monthly fee.
5. The Code therefore did not apply to the appellant's guarantee. Section 8(1) of the Code says: 8 Guarantees to which this Code applies (1) This Code applies to a guarantee if: (a) it guarantees obligations under a credit contract; (b) the guarantor is a natural person or a strata corporation.
6. As the guarantee signed by the appellant did not guarantee a credit contract, it did not fall within s 8(1).
7. Even if the Print Copy Plan and PCPV amounted to the provision of credit, the Code still did not apply as the Code does not apply to commercial transactions such as the Print Copy Plan and PCPV.
8. Clause 5(1) of the National Credit Code says: (1) This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into: (a) the debtor is a natural person or a strata corporation; (b) the credit is provided or intended to be provided wholly or predominantly: (i) for personal, domestic or household purposes; or (ii) to purchase, renovate or improve residential property for investment purposes; or (iii) to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and (c) a charge is or may be made for providing the credit; and (d) the credit provider provides the credit in the course of a business of providing credit carried on in this jurisdiction or as part of or incidentally to any other business of the credit provider carried on in this jurisdiction.
9. "Debtor" is defined in s 204 as: debtor means a person (other than a guarantor) who is liable to pay for (or to repay) credit, and includes a prospective debtor.
10. The appellant was the guarantor under the PCPV, not the debtor. The debtor, being Sinclair Recruitment, was not a natural person or strata corporation within s 5(1)(a) and thus the National Credit Code does not apply to that provision of credit. In addition, the provision of credit was for business purposes and thus fell outside s 5(1)(b).

Ground 4

1. The appellant submitted that she did not write the word "CEO" above her signature and thus the inference should be drawn that she did not intend to be bound personally to the contract.
2. The appellant cited Giles J observation in Clark Equipment Credit of Australia Ltd v Kiyose Holdinqs Pty Ltd (1989) 21 NSWLR 160 in which his Honour said: "In the result, I conclude that the proper approach is to inquire whether there is to be found an intention that the signatory be personally bound to the contract evidenced in the document, meaning thereby not a subjective intention but an intention to be found objectively, nothwithstanding a qualification attached to the signature. That intention, or lack thereof, is to be found upon the construction of the document as a whole, including but not being limited to the qualification attached to the signature, in the light of the surrounding circumstances to the extent to which evidence thereof is permissible. The inquiry is not limited to consideration of the signature and its qualification in order to determine whether or not the signature indicates an assent to be personally bound."
3. In that case the issue his Honour determined was that where a contract is executed, and on the face of the contract the party executing it signifies a limitation upon the measure of assent to be derived from his signature, the proper approach is to inquire whether there is to be found an intention that the signatory be personally bound to the contract evidenced in the document, meaning thereby not a subjective intention but an intention to be bound objectively, notwithstanding the qualification attached to the signature.
4. The short facts of the case were that there was a commercial agreement and a guarantee contained in the same document. There was provision for signatures by directors of the company to bind the company, but no provision for execution by any guarantor, whether personal or corporate, and no provision was made for execution by Mr O'Sullivan or Mr Mould as guarantors. Both of those men signed the agreement in the one place indicated, the question being whether they signed solely as directors (binding the company) or also signed it intending to be bound personally (under the guarantee).
5. In the event, his Honour found they had not signed the document intending to be bound personally.
6. The present case is distinguishable.
7. First, there was no limitation signified upon the appellant's signature on the guarantee. The appellant signed the PCPV once to indicate assent to binding Sinclair Recruitment under the words "Executed on behalf of the Customer". Differently to the case she cited, the appellant then signed the following page under the heading "Guarantee". Thus, there was no ambiguity or limitation signified about the capacity in which she signed the guarantee.
8. The law is that a party who signs a contract (and a guarantee is a form of contract) is bound by that contract whether that party reads the contract or not, unless their signature was obtained by fraud or misrepresentation - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52.
9. In that case Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said at [42]-[43] (footnotes omitted): [42] Consistent with this objective approach to the determination of the rights and liabilities of contracting parties is the significance which the law attaches to the signature (or execution) of a contractual document. In Parker v South Eastern Railway Company, Mellish LJ drew a significant distinction as follows: 'In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it.' [43] More recently, in words that are apposite to the present case, in Wilton v Farnworth Latham CJ said: 'In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions.'"
10. And at [46]: "The statements in the above authorities accord with the well-known principle stated by Scrutton LJ in L'Estrange v F Graucob Ltd (L'Estrange v Graucob) that '[w]hen a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.'"
11. It follows that the appellant is bound by her signature.

Orders

1. It follows from the above that we do not accept any of the appellant's grounds of appeal.
2. We make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2022