Thumbiran v Silver Chef Rentals Pty Ltd; Thumbiran v Silver Chef Rentals Pty Ltd

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. LEEMING JA: Mr Trevelyn Thumbiran brings two proceedings in this Court. By notice of appeal belatedly filed on 19 November 2021, he appeals from orders made in the Real Property List in the Equity Division on 24 June 2020 directing him to execute a "deed of settlement" attached to the orders and, in the event that he failed to do so, authorising a Registrar to execute the deed on his behalf. Secondly, by summons filed 14 January 2022, he seeks leave to appeal from an interlocutory judgment in the Commercial List, summarily dismissing separate proceedings he had brought against Silver Chef. Both proceedings were heard concurrently, including the application for an extension of time and the application for leave.
2. A large volume of material was placed before the Court. I am conscious that there has not, to date, been a hearing on the merits, and the result of this judgment is that there may be such a hearing. In those circumstances, the appropriate course is to give a relatively brief summary of the facts giving rise to this litigation.

Factual and procedural background

1. In May 2018, Silver Chef Rentals Pty Ltd appears to have entered into various equipment rental agreements with Donny's Pizzeria Pty Ltd. The obligations of Donny's Pizzeria were guaranteed by Mr Antonio Telese and Absolute Pump Services Pty Ltd, a company apparently controlled by Mr Thumbiran, which was a minority shareholder in Donny's Pizzeria.
2. Clause 37 of the agreements is a guarantee, expressed to apply "if there is one or more persons specified as Guarantor in the Schedule". Clause 38 provided that "the Guarantor (if any) charges as a fixed and floating charge all their property, both real and personal, with the payment of all amounts now or in the future becoming owing under this Contract".
3. Silver Chef contends, and Mr Thumbiran denies, that he personally guaranteed Donny's Pizzeria's obligations. The focus of that dispute is a letter dated 11 May 2018 sent by Silver Chef to Mr Thumbiran, which he accepts he (electronically) signed on 11 May 2018. The letter says that his signature was witnessed by Mr Telese, who provided his own (electronic) signature on 14 May 2018 (no submissions were made about the disparity in dates or how the witnessing could have occurred). The letter provides as follows: "We wish to bring to your attention the importance of the personal guarantee that you propose to give in support of a rental contract between Silver Chef and Donny's Pizzeria Pty Ltd trading as Modo Mio Ristorante E Pizzeria. First, WE STRONGLY RECOMMEND THAT YOU SEEK INDEPENDENT LEGAL ADVICE ON THIS MATTER BEFORE SIGNING THE ATTACHED GUARANTEE. Secondly, we draw your attention to Section 37 of the standard terms and conditions of the rental contract. By signing the guarantee you acknowledge that you will become jointly and severally liable for the obligations to Silver Chef undertaken by Donny's Pizzeria Pty Ltd trading as Modo Mio Ristorante E Pizzeria, should the company fail to honour these obligations. Your liability will be for the full liability owed by Donny's Pizzeria Pty Ltd trading as Modo Mio Ristorante E Pizzeria under the rental contract. We ask that you consider your financial position and the financial position of Donny's Pizzeria Pty Ltd trading as Modo Mio Ristorante E Pizzeria before signing the attached guarantee. We trust that you accept the direct nature of this correspondence, as we need to stress the potential ramifications of this guarantee should you choose to sign the document. We ask that you sign the duplicate copy of this correspondence to acknowledge that you have read and understood our warnings in relation to this matter."
4. Mr Baird, who appeared for Silver Chef, contended that there was at least an arguable case that by signing that letter, Mr Thumbiran granted a charge over all of his real and personal property as well as guaranteeing the obligations of Donny's Pizzeria. Mr Zappia QC, who appeared in this Court but had not previously appeared for Mr Thumbiran, submitted that any such contention was risible. In fact, the Commercial List Statement goes so far as to say that relying upon that letter as constituting either the entry into the guarantee or the giving of a charge in support of the obligations under the guarantee would be fraudulent, because either no one looking at the documents could honestly form that view, or alternatively, if they did, they would do so with a reckless indifference to the legal truth. Silver Chef in turn contended that Mr Thumbiran's contention is baseless such that his proceeding should be summarily dismissed.
5. There has never been an explicit adjudication on whether Mr Thumbiran was a guarantor. It will be necessary in what follows to address Silver Chef's contention that orders giving effect to a compromise of litigation where that point was in issue amounted to a determination of the point favourably to Silver Chef.

The Caveats and the Real Property List proceedings

1. At least five caveats were lodged upon properties owned by Mr Thumbiran by Silver Chef acting through a firm of solicitors. In each case, the caveatable interest was described as follows: "Pursuant to a written agreement between the Caveator and Trevelyn Thumbiran (TT) dated 11 May 2018, TT agreed to guarantee the obligations of Donny's Pizzeria Pty Ltd to the Caveator and charge any land owned by TT as security for TT's obligations, as guarantor, to the Caveator."
2. The caveats came to Mr Thumbiran's attention in late 2019 when preparing for the sale of one of the properties. He caused lapsing notices to be filed. Silver Chef commenced proceedings in the vacation obtaining orders extending the caveat subject to undertakings, which led to an exchange of emails between solicitors. The emails culminated in an exchange at 12.44pm and 2.32pm on 11 March 2020, as follows.
3. At 12:44pm on 11 March 2020, Silver Chef's solicitor Mr Yam sent an email to Mr Thumbiran's solicitor Mr Bakoss. The email was in the following terms: "We refer to: our telephone discussion today subsequent to your letter dated 11 March 2020 sent by email today at 11:56 a.m.; your letter dated 11 March 2020. Our client is prepared to settle the dispute between our client and your client the subject of the proceeding on the basis that: 1. your client pays to our client the sum of $150,000.00 as follows: (a) $32,919.69 by electronic funds transfer into our client's bank account at the settlement of the contract of sale of xxxxx Street, The Ponds NSW 2769 (Settlement) which is scheduled to take place today; (b) the balance sum of $117,080.31 by way of equal monthly instalments over a period of 9 months or more (to be discussed and agreed between our client and your client if your client requires more than 9 months); 2. our client withdraws Caveat AP281131 at the Settlement in exchange for the sum of $32,919.69; 3. our client, your client and Vanessa Thumbiran give consent to the Court making the following orders: (a) the proceeding is dismissed; (b) there be no order as to costs; 4. upon payment of the sum of $150,000.00 in full by your client to our client, our client will: (a) withdraw the caveats lodged against: (i) xxxx Place, Doonside NSW 2767; (ii) your client's interest in xxxx Street, Hamilton QLD 4007; (iii) your client's interest in xxxx Boulevard, Point Cook VIC 3030; (iv) your client's interest in xxxx Grove, Point Cook VIC 3030; (b) release and discharge your client and Absolute Pump Services Pty Ltd and forever hold them harmless from all causes of action, claims, demands, actions, suits, proceedings or complaints of whatsoever nature which our client may now have or at any time hereafter may have or might have had against them including anything arising from or in relation to any occurrence, act or omission which happened at any time prior. 5. our client and your client enter into a Deed of Settlement to be prepared by our office to record the terms referred to above. Please obtain your client's instructions and confirm in writing that your client is prepared to settle the dispute between our client and your client the subject of the proceeding on the basis referred to above. It should be noted that the heading to the email identified Mr Bakoss' client as the first defendant. The email should be understood as containing an offer by the plaintiff to the first defendant."
4. Mr Thumbiran's solicitor responded by email at 2:32pm. This email was in the following terms: "We refer to the above matter and your earlier correspondence including a letter of offer. We have now received confirmation and consent that our client Trevelyn Thumbiran and Vanessa Thumbiran agree to the terms as outlined in your letter of offer earlier today. We advise you [that] settlement should now proceed and request that you update your entry in PEXA accordingly."
5. The $32,919.69 was deposited into Silver Chef's PEXA account later that afternoon.
6. Shortly thereafter, Mr Thumbiran declined to execute a deed proffered by Silver Chef, or indeed any other deed. He gave evidence in the proceedings in the Real Property List that he would have lost approximately $500,000 if the sale of his land had fallen through on 11 March 2020, which was the only reason he gave instructions to accept Silver Chef's offer. He stated that: "However, I did not wish to settle the proceedings as a whole. I maintain my position that I did not sign a personal guarantee, and that the Plaintiff has no basis to seek any relief from me personally. I was forced into paying the $32,919.69 to the plaintiff on 11 March 2020 in order to allow the sale to occur. I would not have agreed to it in any other case. I refuse to sign the deed of settlement prepared by the defendants."
7. Silver Chef by notice of motion in the caveat proceedings applied for orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) determining that a binding compromise had been reached. Both sides consented to that question being determined on the papers. By judgment delivered on 21 May 2020 (shortly after the commencement of the Covid-19 pandemic), Darke J found that the proceedings had been settled on the terms of the emails reproduced above: Silver Chef Rentals Pty Ltd v Thumbiran [2020] NSWSC 605. No issue is taken with that judgment.
8. His Honour stated at [34] that: "The Court will order pursuant to s 73 of the Civil Procedure Act that the proceedings as between the plaintiff and the first defendant were settled on 11 March 2020 on the terms set out in Mr Yam's email to Mr Bakoss sent at 12:44pm on that day, which terms were accepted by Mr Bakoss' email sent at 2:32pm on that day."
9. However, the order entered on JusticeLink is less specific than what was stated with precision in the reasons for judgment. It is: "Pursuant to s 73 of the Civil Procedure Act 2005 (NSW), orders that proceedings as between the plaintiff and the first defendant were settled on 11 March 2020."
10. Two things happened thereafter. First, Mr Thumbiran retained different solicitors who in turn sought to retain different counsel. Secondly, there was steadfast refusal on the part of Mr Thumbiran to execute any of a series of amended proposed deeds supplied by Silver Chef.
11. Ultimately, at a directions hearing on 24 June 2020, at which Mr Thumbiran was represented by a junior employee of the new firm of solicitors who was not admitted (despite the transcript not recording any application by him for leave to appear), Darke J made the orders which give rise to the first appeal, namely that Mr Thumbiran execute a particular deed of settlement. The orders annexed a draft deed. The draft deed was the third or fourth version which had been formulated by Silver Chef's solicitors, further modified by two points noticed by his Honour and advised to Silver Chef during that hearing, of provisions that went beyond that which had been agreed in the exchange of emails.
12. Darke J was entitled to expect that, where both sides were represented, any significant discrepancies between the agreement which had been found to exist and the draft deed would be brought to his attention. That did not occur. Instead, the unadmitted employee sought an adjournment, without evidence, for the purpose of obtaining advice as to an appeal, and Darke J raised the points that (a) it would be desirable for an appeal to be brought from an actual deed, rather than merely from the orders which had previously been made, and (b) that there was no apparent prejudice in making orders disposing of the matter. The employee did not cavil with either point, and indeed there was an advantage to Mr Thumbiran, insofar as he would enjoy an appeal as of right from a final decision. No challenge is made to his Honour's refusal of the application for an adjournment. No submission was made that the deed proffered by Silver Chef as amended by his Honour did not fairly encapsulate the agreement between the parties in the exchange of emails. No reasons were sought from his Honour.
13. Orders in the following terms were made: "1. Orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW), that the first defendant shall, within 7 days of these orders, execute on his own behalf the document entitled "Deed of Settlement", a copy of which is annexed to these orders (Deed of Settlement); 2. Orders pursuant to s 94 of the Civil Procedure Act 2005 (NSW), that in the event that the First Defendant fails to comply with Order 1, a Registrar of the Supreme Court of New South Wales shall be authorised to execute the Deed of Settlement for or on behalf of the First Defendant, Trevelyn Thumbiran, in his personal capacity."
14. Mr Thumbiran still refused to execute the deed, and in due course, on 17 July 2020, a Registrar of this Court did so on his behalf.
15. The hearing in this Court proceeded on the basis that none of the additional payments by Mr Thumbiran were subsequently made, nor have any of the other caveats been withdrawn.

The proceedings in the Commercial List

1. By summons filed 30 July 2021 in the Commercial List, Mr Thumbiran and Absolute Pump Services commenced separate proceedings against Silver Chef Rentals, joining Donny's Pizzeria and Mr Telese on the basis that they were necessary parties (the latter have played no active part in the litigation to date). Those proceedings sought orders withdrawing the caveats and compensation for lodging them, an order permanently restraining any steps to enforce the settlement deed, and a declaration that it was of no force and effect and that all copies be delivered up and destroyed. They also sought a declaration that Mr Thumbiran is not and has never been a guarantor, orders setting aside any orders made in the caveat proceedings and damages including exemplary and punitive damages.
2. The Commercial List Statement fell short of saying that the orders made by Darke J had been procured by fraud, but did allege that by commencing and prosecuting the caveat proceedings, there was an abuse of process, because there was a "want of any proper basis to contend TT [Mr Thumbiran] was a guarantor of any rental agreement", and articulated a primary case that the instructing officer of Silver Chef had as his or her exclusive or predominant purpose to exert pressure on Mr Thumbiran to pay down unsecured arrears or alternatively realised that the claim that he was a guarantor was hopeless, but "decided (or was told by his superiors) to nonetheless proceed to give instructions to commence the proposed Caveat Proceeding for the purposes of exerting pressure on [Mr Thumbiran]". The Commercial List Statement provided: "To be clear, TT will contend the Caveat Proceedings was an abuse of process for three reasons: a. first, because it was founded upon the fraudulent lodgement of caveats: ex turpi causa non oritur action; b. secondly, the action was devoid of merit because the contention that TT was a guarantor was (and remains) preposterous; and c. thirdly, because it was commenced for an improper collateral purpose, being to exert pressure on TT to pay Silver Chef monies which Silver Chef knew or ought to have known it had no entitlement; a hopeless case brought for an improper collateral purpose. Silver Chef was either recklessly indifferent to the existence of any reasonable basis to commence the Caveat Proceedings or knew there was no reasonable basis."
3. Silver Chef moved for the Commercial List proceeding to be summarily dismissed. That occurred, once again, by an exchange of evidence and submissions being considered on the papers. Silver Chef was successful: Thumbiran v Silver Chef Rentals Pty Ltd [2021] NSWSC 1300. It is plain that a central aspect of the reasoning was the existence of the deed. Ball J identified the deed as the first reason why Mr Thumbiran's submission was misconceived, saying at [26]: "SCR's claim to be entitled to maintain the caveats now rests on the settlement agreement embodied in the Settlement Deed, which is binding on Mr Thumbiran. In order to attack the caveats, the plaintiffs must attack that agreement. Until the settlement agreement is set aside, anything that went before it is irrelevant."
4. Mr Thumbiran seeks leave to appeal from the summary dismissal of that proceeding. Leave is required because the decision was interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e) and see Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]. There may be an issue whether Mr Thumbiran also required leave to appeal from the final determination of the caveat proceedings, insofar as he only challenged the orders made on 24 June 2020, and not the earlier judgment, because it has not been shown that more than $100,000 is involved: see s 101(2)(r). Nothing turns on that. No point was taken by Silver Chef as to the competency of Mr Thumbiran's appeal, and if leave be required, this is a case for granting leave, for the reasons which follow.

The deed executed by the Registrar departed from the agreement reached between the parties

1. The most efficient starting point is the deed executed on behalf of Mr Thumbiran by the Registrar of this Court.
2. Some of Mr Thumbiran's written submissions protested that he had not executed the deed. That is true as a matter of fact, but not as a matter of law. Section 94 of the Civil Procedure Act authorised the Court to confer authority upon the Registrar to execute a deed which Mr Thumbiran had been ordered to execute and which he had failed to do. Earlier forms of such provision required the defendant first to have been imprisoned for two months for contempt, and to have again refused: see G Stuckey and C Irwin, Parker's Practice in Equity (Lawbook Co of Australasia Pty Ltd, 1949), pp 131-132. The removal of the requirement of imprisonment before the power was engaged may be seen in s 14 of the Judicature Act 1884 (UK) (reproduced and considered in J Oswald, Contempt of Court (William Clowes and Sons, 1895), p 74). The breadth of the modern formulation of the provision may be seen from the facts that (a) there is no limitation on either the class of document which the Court may order to be executed or on the purpose for which a document so executed could be used: Astro Exito Navegacion SA v Southland Enterprise Co Ltd [1983] 2 AC 787, and (b) such an order may be made in advance, if the circumstances demonstrate the probable futility of any proper request: Commonwealth Bank of Australia v Dariusz Adam Gaszewski [2006] NSWSC 772.
3. The critical aspect of the deed executed by the Registrar is not whether it is taken to have been executed by Mr Thumbiran and binds him. That is uncontroversial. The critical aspect is that it goes substantially further than the agreement evidenced by the exchange of emails.
4. The parties are defined as "TT" and "SCR" and the five properties are defined. Clause 2.1 includes acknowledgements that the parties have received independent legal advice, understand the terms and effect of the deed and enter it of their own free will and without any compulsion or duress. Clause 2.2 goes much further, and provides: "2.2 TT acknowledge [sic] that: (a) he is liable to SCR as guarantor under the First Rental Agreement and the Second Rental Agreement; (b) he charged, in favour of SCR: (i) his interest in [the property at The Ponds]; (ii) the Doonside Property; (iii) his interest in the Hamilton Property; (iv) his interest in the First Point Cook Property; (v) his interest in the Second Point Cook Property; as security for the due punctual and complete performance of his obligation to SCR as guarantor under the First Rental Agreement and the Second Rental Agreement. (c) SCR has: (i) an equitable charge over his interest in [the property at The Ponds]; (ii) an equitable charge over the Doonside Property; (iii) an equitable charge over his interest in the Hamilton Property; (iv) an equitable charge over his interest in the First Point Cook Property; (v) an equitable charge over his interest in the Second Point Cook Property; hereinafter referred to as Equitable Charges as security for the due punctual and complete performance of his obligations to SCR as guarantor under the First Rental Agreement and the Second Rental Agreement."
5. So long as the deed remains in place, those recitals are admissions by Mr Thumbiran that he was a guarantor and that Silver Chef had the benefit of a charge. They were also apt to give rise to a common law estoppel to prevent him denying either matter: see Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [380(4)]. The position in equity is different. As Lord Maugham explained in Greer v Kettle [1938] AC 156 at 171: "The position in equity is and always was different in this respect", adding that there could be no estoppel in the face of a claim to rectification or rescission, points emphasised in K Handley, "Reinventing estoppel in the Privy Council" (2014) 130 Law Quarterly Review 370 (statements to the contrary in Prime Sight Ltd v Lavarello [2014] 1 AC 436; [2013] UKPC 22 notwithstanding). But the nuances attendant upon the legal effect of an estoppel flowing from a recital in a deed do not deny that the inclusion of recitals such as cl 2.2 had a substantive legal effect.
6. Clauses 3 and 4 broadly reflected the emails of 11 March 2020. Clause 3.1 provided: "TT will pay to SCR the Settlement Sum in full and final settlement of the obligations of TT and APS to SCR as guarantors under the First Rental Agreement and the Second Rental Agreement."
7. Clause 3.2 contained an acknowledgement by SCR that Mr Thumbiran paid the sum of $32,919.69 on 11 March 2020.
8. There is a slight departure in cl 3.3, which required Mr Thumbiran to pay SCR the balance of the settlement sum of $150,000 by way of equal monthly instalments over a period of nine months commencing on 1 April 2020. But contrary to Mr Thumbiran's submissions, I do not think anything turns on the fixing of a nine month period, as opposed to the "9 months or more (to be discussed and agreed between our client and your client if your client requires more than 9 months)". It is difficult to see how any language incorporating those words would be enforceable and add materially to what was in cl 3.3.
9. Clause 4.1 is in a different category. It provided that if no default has occurred and Mr Thumbiran has paid the settlement sum in full, SCR will withdraw its remaining caveats. That might seem unexceptional, but as Mr Thumbiran submitted, it materially departs from the 11 March emails. The promise to withdraw the caveats is not conditioned merely upon the provision of the $150,000, as was the case for the offer made and accepted on 11 March 2020, but also upon the absence of an event of default. This was significant because of the time which had elapsed. By the time the deed was executed, the first, second and third monthly payments were already late and so there had been an event of default. On its face, if Mr Thumbiran paid the outstanding $117,080.31 on the day prior to the deed being executed, he would be entitled to the removal of the caveats. If he did so the day after the deed was executed, there would have been a default, and Silver Chef would be entitled to insist on interest and its other rights following default before removing the caveats.
10. The deed provided in cl 17.1 that it was to be construed in accordance with the laws of the State of Victoria, and provided that "the parties expressly and irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria at Melbourne"; there was no suggestion of any exclusive jurisdiction clause in the exchange of emails. This clause was not relied upon in the application for summary dismissal of the Commercial List proceeding, or this appeal, and for good reason. I would infer that it was never drawn to Darke J's attention, as it should have been, as on any view being an unusual clause in the boilerplate provisions of a deed compromising New South Wales litigation involving a caveat over land in New South Wales.
11. Enough has been said to establish that the deed which Darke J ordered to be executed on behalf of Mr Thumbiran went materially beyond the agreement upheld by his Honour.

The significance of the departure in the deed from the agreement reached on 11 March 2020

1. As noted above, in dismissing the Commercial List proceeding, Ball J made it plain that he relied upon the deed. An ordinary reading of the passage reproduced above, coupled with the fact that Ball J reproduced the recitals in their entirety, makes it natural to conclude that the recitals were influential in his conclusion. However, Mr Baird contended that cl 2.1 and 2.2 played no part in Ball J's reasons, and that rather his Honour was relying upon the established validity of the caveats which flowed from the terms of the exchange of emails. Mr Baird submitted that the promise in cl 4.1 that Silver Chef would withdraw the caveats upon payment of a sum of $150,000 carried with it an implied entitlement to maintain those caveats until such time as $150,000 was paid, and that implied entitlement in turn entailed that there was a valid caveatable interest. The argument was by way of confession and avoidance. Silver Chef confessed that the recitals drafted by its solicitors formed no part of the agreement reflected in the exchange of emails, and should not have been included, but sought to avoid the consequence by saying that they were severable and had not been relied upon, such that the error did not impact upon the summary dismissal of the Commercial List proceeding.
2. I cannot accept Silver Chef's argument. First, it is a strained reading of Ball J's reasons. Why would a judgment reproduce recitals if they were irrelevant? Secondly, it is bad in law. There was no adjudication of the validity of the caveats before Darke J. The only question was whether the parties had entered into a binding settlement. The settlement, not uncommonly for compromises in the Real Property List, involved a promise to withdraw caveats upon the occurrence of a condition. Neither the settlement nor the promise carried with it an acceptance that there was a caveatable interest. This was not a case where, in the language of Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 upon which Mr Baird relied, the validity of the caveatable interest was something which was legally indispensable to the court's judgment. All that Darke J had to determine was whether the parties had reached agreement, and whether defences of duress or unconscionable conduct had been made out. The significance of this, of course, is that nothing in the exchange of emails which formed a binding agreement went so far as to acknowledge the validity of the caveats, whereas the recitals confirmed their validity, thereby materially affecting the parties' rights.
3. The parties exchanged submissions about whether, assuming the deed remained in place, Ball J had erred in summarily dismissing the Commercial List proceeding. It is not necessary to express views about the claims for collateral abuse of process or fraud which have been advanced by Mr Thumbiran, and it not being necessary to do so, in my view it is inappropriate to do so. Anything said by this Court might cause complexity at the subsequent final hearing, at which Silver Chef will have articulated its defence, and evidence not before this Court is apt to have been adduced. This may be regarded as an aspect of the notion of judicial economy, which is deeply embedded in the common law system of adjudication, as discussed in Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7].
4. But one point should be made clear lest it consume further time. Signing the letter of 11 May 2018 did not without more make Mr Thumbiran a guarantor. Still less could it amount to his granting a charge over his real property to secure his obligations as guarantor. That result is readily reached without any recourse to the principles that guarantees are read strictly with ambiguity resolved favourably to the guarantor: see Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 at 561; [1987] HCA 15. The letter of 11 May 2018 is not contractual. It is not expressed to be contractual. It is expressed to be an acknowledgement of the consequences which will flow if another document is executed. The acknowledgement proceeds on the basis that Mr Thumbiran is named as a guarantor in the other document to be executed by him, said to be attached to it. In the volume of material which was part of the record in these appeals, all of which appears to have been prepared by Silver Chef, there was no document which described Mr Thumbiran as a guarantor. It is true that there are documents signed electronically by Mr Thumbiran next to the words "Guarantor - Absolute Pump Services Pty Ltd", but such documents explicitly identify Absolute Pump Services Pty Ltd as the guarantor, and it is plain that Mr Thumbiran's signature is as the company's agent rather than in his own capacity.
5. Mr Baird was asked, repeatedly, to articulate the argument on which the signature of the 11 May 2018 document could support the conclusion that Mr Thumbiran was a guarantor. Nothing meaningful was said in response. Nor could it be.
6. To be clear, it does not follow from the above that there was fraud or anything like fraud in the caveats being lodged and extended. It would be necessary, at the very least, to understand the instructions and documents received by the solicitor and the terms of the retainer before one could even begin to analyse that position. It also does not follow that Mr Thumbiran did not, by some other contract or even perhaps by some mechanism short of contract, assume the obligations of a guarantor. Those things may be issues at trial. But the trial judge should not have his or her time consumed by yet further submissions that the acknowledgement dated 11 May 2018 was a guarantee by Mr Thumbiran.

Conclusion and orders

1. There was unchallenged evidence of Mr Thumbiran obtaining advice as to his position after the deed was executed, following which an appeal was brought from the orders made on 24 June 2020. The explanation is perhaps less complete than it could be, but the disparities mentioned above, and the absence of any suggestion by Silver Chef of prejudice, make this a plain case for extending time and granting leave, if leave be required. The deed in the form executed by the Registrar materially departed from the agreement between the parties. A declaration to that effect should issue, and the original deed should be delivered up to the Court for cancellation. I propose a further declaration making precise what flowed from Darke J's (unchallenged) first decision. That declaration is not intended to stand in the way of Mr Thumbiran's claim that the agreement of 11 March 2020 was procured by fraud or other misconduct and should be set aside.
2. The departures in the deed from the parties' agreement had a material effect upon the exercise of discretion by Ball J to order summary dismissal. On the re-exercise of that discretion, Silver Chef's motion must be dismissed. It cannot be said that there is no triable issue that Silver Chef (a) lacked a caveatable interest and (b) proceeded in a way which entitles Mr Thumbiran to relief. It follows that there should be a grant of leave and the appeal allowed and the orders dismissing the Commercial List proceeding be set aside.
3. The result is that, subject to Mr Thumbiran's claims that the agreement is either void or liable to be set aside for fraud or abuse of process, the parties remain bound by the agreement reflected in the emails, and upheld in the unchallenged judgment of Darke J of 21 May 2020, with the Commercial List proceedings remaining on foot.
4. I turn to costs. Silver Chef should pay Mr Thumbiran's costs in this Court in accordance with UCPR r 42.1. There being no challenge to any part of Darke J's decision of 21 May 2020, there is no reason to alter the discretion as to costs of that proceeding up to that point. There should be no orders as to the costs incurred in the Real Property List thereafter, with the intention that each side bear his and its own costs. It appears that the only costs ordered have been costs of the motion seeking orders pursuant to s 73 of the Civil Procedure Act, and the orders I propose will confirm that that order is limited to costs incurred up to 21 May 2020. Silver Chef should not have propounded drafts of the deed which materially departed from the agreement. On the other hand none of the points made in this Court were advanced by Mr Thumbiran to Darke J. This is a case where the need for the appeal is attributable to failures on both sides. Nothing in the preceding sentences is intended to preclude any submission in the Commercial List proceeding that Mr Thumbiran is entitled to recover his solicitor/client costs occasioned by the misconduct he alleges. Nor will Silver Chef be precluded from advancing the contrary submission.
5. The discretion as to the costs of the motion in the Commercial List also falls to be re-exercised. The order dismissing Mr Thumbiran's proceeding should not have been made. In accordance with r 42.1, the appropriate course is for the motion to be dismissed with costs.
6. I propose the following orders:
7. In 2021/329654: 1. Extend the time to appeal to 19 November 2021 and, to the extent necessary, grant leave to appeal. 2. Appeal allowed, with costs. 3. Set aside the orders made on 24 June 2020. 4. Declare that the deed dated 20 March 2020 and executed by the Registrar on 17 July 2020 does not reflect the agreement between the parties compromising proceeding 2020/20537, and order that the original instrument be delivered up for cancellation. 5. Declare that proceeding 2020/20537 was settled on the terms of the emails sent at 12.44pm and 2.32pm on 11 March 2020, reproduced in [2020] NSWSC 605 at [9] and [10]. 6. Note that the order made on 21 June 2020 that the defendants pay Silver Chef's costs of the motion filed on 17 April 2020 does not extend to costs incurred after 21 May 2020.
8. In 2021/307674: (1) Grant leave to appeal and dispense with the requirements to file and serve a notice of appeal. (2) Allow the appeal with costs. (3) Set aside the orders made in the Commercial List on 13 October 2021, and in lieu thereof dismiss Silver Chef's notice of motion filed on 23 August 2021 with costs.
9. BRERETON JA: I agree with Leeming JA.
10. MITCHELMORE JA: I agree with Leeming JA.

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: 11 August 2022