Toyota Finance Australia Limited v Gardiner

Court of Appeal (NSW)|2016-05-16|Before: McColl JA, Leeming JA, Payne JA, Mason P, Coll JA

[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

McCOLL JA: The facts are set out in the reasons of Payne JA which I have had the advantage of reading in draft. I have repeated, or added to, the facts his Honour has recorded to the extent necessary for my judgment. I agree with the orders his Honour proposes for the following reasons and those of his Honour.
The only issue at trial and on appeal was whether the appellant, Toyota Finance Australia Limited (Toyota), proved that the respondent, Mr Gardiner, had guaranteed the obligations of Gardiner Petroleum Pty Limited (in liquidation) (Company) under a number of hire purchase agreements entered into between July 2007 and August 2009 and varied on 20 July 2011 (variation). Toyota's pleaded cases at trial were that Mr Gardiner's liability as guarantor arose from the variations.

Consideration

As the Lord Chancellor said in Blest v Brown, "a surety is bound … to the letter of his engagement. Beyond the proper interpretation of that engagement you have no hold upon him. He receives no benefit and no consideration. He is bound, therefore, merely according to the proper meaning and effect of the written engagement that he has entered into." [2] Thus, as Deane J said in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd, "the obligations of a surety are strictly confined to what he has undertaken in the contract which constitutes him a surety". [3]
Evidence of a guarantee can "be made out from several documents if they can be connected together." They may be connected by express reference. In addition, "if you can spell out of the document a reference in it to some other transaction, you are at liberty to give evidence as to what that other transaction is, and, if that other transaction contains all the terms in writing, then you get a sufficient memorandum within the statute by reading the two together." [4] The documents "must be connected with each other so naturally and reasonably" that it can be concluded "that they all form part of the same transaction." [5]
Toyota accepts the Anagnostou exhibit is a pro forma document, but submits that it is sufficiently identifiable as the Booklet, applying the principle that where parties have chosen to incorporate terms, the Court should do its best to identify the terms intended if there is some doubt. [6] For the reasons Payne JA has given (at [66] - [70]) the Anagnostou exhibit cannot be said to be so connected with the hire purchase agreements which it post-dated, or the variations, so that it can be concluded it was the Booklet Mr Gardiner acknowledged receiving in 2011. Indeed, it confounds the nature of the transaction to infer that, if he was given anything, Mr Gardiner would have been given a pro forma document. No doubt (although this was not clear) Toyota did not seriously contend that it gave Mr Gardiner a pro forma document. However if, as one might reasonably infer, it gave him a similar document completed to reflect the particular transaction, for reasons upon which I expand below, it strains credulity as to why it could not produce even one such completed document.
Moreover, the fact that the Anagnostou exhibit was produced in December 2009 suggests that Toyota changed its terms and conditions from time to time. It cannot confidently be inferred that whatever booklet, if any, was given to Mr Gardiner at the time of the variations, was the 2009 edition. The fact that there is some identity between the words used on the face of the Anagnostou exhibit and the words in the receipt clause does not, in my view, provide the necessary link. They are words of general application to the sort of transaction being described, rather than being particular to a transaction between Toyota, the Company and Mr Gardiner. Accordingly, Toyota failed to establish that the Anagnostou exhibit was connected with the variation documents so that it could be concluded that they all formed part of one transaction.
As I have said, Toyota also submitted that the court could be more confident in drawing an inference that the Anagnostou exhibit was the Booklet because Mr Gardiner did not give evidence. [7] I would reject that submission.
In considering whether an inference favourable to a party should be drawn, a court should have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so. [8] This reflects the proposition that "evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." [9] Thus, where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case. [10]
The corollary is, as Hodgson JA explained in Cook's Construction Pty Ltd v Brown, that: "[42] … where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party's favour from indirect and second-hand evidence, when the party doesn't call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation …" [11]
The rule in Jones v Dunkel only applies where a party is required to explain or contradict something: no inference can be drawn unless evidence is given of facts requiring an answer. [12] The absence of a defendant "cannot be used to make up any deficiency of evidence". [13] Rather, where an inference is open and the defendant fails to call evidence, the defendant's absence entitles the court "to be bold" in drawing an inference adverse to the defendant. [14]
Mr Anagnostou deposed in his affidavits sworn on 13 March 2015 in each proceeding that Toyota's system of record-keeping primarily consisted of electronic records, such that if Toyota received any documents "in hard copy", they were "usually scanned onto the computer system and the originals … destroyed." He also said that "from time to time, there may be some hard copy documents in addition to the electronic records". He added that all the documents to which he referred in each affidavit "have been sourced from the business records maintained by [Toyota]" in accordance with the system I have described.
In a later affidavit sworn on 18 August 2015 Mr Anagnostou went into further detail about Toyota's computerised record system, apparently with a view to establishing the comprehensive nature of the records kept. Unsurprisingly, those records included the "[c]ustomer name, including and any guarantors" [sic, as in original], the "type of contract" and the "[t]ransaction history in respect of a contract". In addition, he deposed that Toyota's computer records stored "contracts [and] security documents".
I would infer from Mr Anagnostou's evidence that documents such as the Booklet attributable to each hire purchase agreement and/or variation transaction between Toyota and Mr Gardiner would, or should, have been kept on Toyota's computer system. If it was not, the original should have been in Toyota's records, as the Schedule recorded that Mr Gardiner only received a copy.
It is apparent from the Anagnostou exhibit that, assuming it to be one which related to the transactions with the Company and Mr Gardiner, the Booklet was supposed to identify in each case, the customer to whom it related. So completed, it formed part of Toyota's business records. It should, therefore, in accordance with its system, have been electronically available. If not, as I have said, the original should have been retained.
Having gone out of its way to demonstrate the comprehensive nature of its computerised record keeping, Toyota did not call any evidence to explain why it did not, or could not, produce any electronic version, or the original, of any Booklet apparently completed at the time of each hire purchase agreement or, relevantly, any variation which was the Booklet Toyota said it had supplied to Mr Gardiner. This is despite the fact that, as Payne JA has explained, it was given leave to re-open its case after the deficiencies in its case were identified on the first day of the trial.
In my view, absent any evidence to that effect from Toyota, and when the Court is unable to connect the Anagnostou exhibit with the Booklet, the foundation for drawing a bold inference in Toyota's favour was not established.
LEEMING JA: I agree with Payne JA.
PAYNE JA: On various dates between 2007 and 2009 the appellant entered into six hire purchase agreements (together, "the Hire Purchase Contracts") with Gardiner Petroleum Pty Limited (in liquidation) ("the Company"). Each of the Hire Purchase Contracts was varied on or around 20 July 2011. It was alleged that the Hire Purchase Contracts, as varied, were in materially identical terms.
In 2012, the Company defaulted on the Hire Purchase Contracts and the appellant issued notices of default to both the Company and the respondent, who, it alleged, had guaranteed the Company's obligations under the Hire Purchase Contracts, and indemnified the appellant for any losses thereunder.
The Company did not comply with the demands for payment, however, it did return the cars to the appellant, who sold them by auction. On 12 September 2012, the Company went into liquidation.
On 5 September 2014, the appellant commenced two separate proceedings in the Local Court at Newcastle, each proceeding concerning three of the Hire Purchase Contracts, against Mr Gardiner, as guarantor, for the amounts allegedly owing to it, being $34,255.27 in the first proceedings (District Court No: 2014/276251) and $91,735.46 in the second proceedings (District Court No: 2014/276253), being a total of $125,990.73, plus default interest. The two proceedings were transferred to the District Court on 27 April 2015, by consent, and heard together. No order for consolidation was made.
The appellant pleaded in each case, in identical terms, that the guarantee which was enforceable in relation to each of the Hire Purchase Contracts was "wholly express and in writing": 2. By way of Agreements wholly express and in writing dated 20/07/2011, (hereinafter referred to as "the Term Purchase Agreements"), Gardiners Petroleum Pty Ltd ("the Hirer") offered and the Plaintiff accepted the Hirer's offer to hire the 'Goods' as described in the 'rental schedules' to the Term Purchase Agreements…upon the terms and conditions as set out in the Term Purchase Agreements…. 5. By way of Agreements wholly express and in writing dated the same date as the Term Purchase Agreements, (hereinafter referred to as "the Guarantees"), the Defendant requested the Plaintiff to enter into the Term Purchase Agreements and to hire the goods to the Hirer, in exchange for which the Defendant unconditionally guaranteed to the Plaintiff that the Hirer would pay on time all the money that the Hirer may owe to the Plaintiff under the Term Purchase Agreements.
The issue in dispute before the primary judge was whether there was a binding contract of guarantee and indemnity in existence as pleaded in paragraph 5 in each case.
On 2 October 2015, the primary judge found that the appellant had failed to establish that there was a binding contract of guarantee and indemnity in existence as pleaded in paragraph 5 in each case or that the terms of any particular document were incorporated into any contract between the appellant and the respondent. Both sets of proceedings against Mr Gardiner were dismissed with costs.
The appellant filed a Notice of Appeal from this decision, arguing that there is a valid and enforceable guarantee under which Mr Gardiner is obliged to pay the outstanding money owed, and seeking an order that he be required to pay to the appellant a total sum of $137,298.30 (being $125,990.73, plus default interest).

The requirement for leave to appeal

The effect of s 127(2)(c)(ii) of the District Court Act 1973 (NSW) is that leave is required for appeals from that Court involving an amount less than $100,000. As noted above, both of these separately constituted matters involves an amount less than $100,000, although the total amount in issue, having regard to both matters, is over $100,000.
As I have said, no order of consolidation was made when the matters were transferred by consent from the Local Court. The primary judge's orders, entered in each case, being District Court No 2014/276253 and District Court No 2014/276251 were that "there will be a judgment for the Defendant".
Somewhat surprisingly, given the fact that the plaintiff below had commenced two separate proceedings and had not sought or obtained an order of consolidation, a single Notice of Appeal was filed seeking orders that "orders 1 and 2 of the judgment of the Court below be set aside". As part of the Notice of Appeal, the solicitor for the appellant certified, as required by the Uniform Civil Procedure Rules 2005 (NSW) r 51.22, that "the amount in issue in this appeal" exceeds the specified amount under s 127(2) of the District Court Act.
In truth, there were separate orders to the same effect made by the primary judge in each of the separate proceedings, District Court No: 2014/276251 and District Court No: 2014/276253 (as the cover sheet of the Notice of Appeal acknowledges).
In NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210, Santow JA (with whom Beazley JA and Bryson JA agreed) held, in somewhat similar circumstances, that it would be open to the Court to make an order consolidating the two actions. A complicating factor in that case was that there was a cross-claim in the court below in an amount of more than $100,000. There was no appeal in relation to that cross-claim. In that case, the Court preferred to take the course of granting leave to appeal.
Attention was also drawn to Pawlowska v Zajglic [2011] NSWCA 118 where Campbell JA, in the course of an application to strike out an appeal as incompetent, noted that leave to appeal was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW), unless the appellant could show that she had "a realistic prospect" of obtaining $100,000 or more if she were to succeed in the appeal.
Mr Ashhurst SC, who appeared for the appellant in this Court but not before the primary judge, submitted that, if it be necessary, he would apply for an order of consolidation. No point was taken by the respondent about the question of leave in written or oral submissions and in those circumstances, the merits of the appeal should be addressed, given that in substance over $100,000 is at stake.
Although it is obviously undesirable that sufficient attention was not given to the form of the judgments appealed from and the requirements of the Uniform Civil Procedure Rules in drawing the Notice of Appeal, having regard to the fact that no objection was taken by the respondent and to the fact that the parties have approached the matter as in substance a single dispute involving an amount over $100,000, which it plainly is, the orders sought in the Notice of Appeal should be construed as referring to the identical orders made by the primary judge in both sets of proceedings.
In these circumstances, it is appropriate that the Court grant leave to appeal in each case.

Relevant facts

The documents relating to each of the six vehicles the subject of these proceedings were in relevantly identical terms. All of the Hire Purchase Contracts were entered into prior to December 2009.
The first relevant document in each suite of documents is described as a "Term/Hire Purchase Application", on which the respondent was named as the "Proposed Guarantor". This form identifies the vehicle to be purchased and the schedule of repayments as between the supplier and the Company. The form was signed by the respondent in his capacity as a director of the Company.
The second relevant document is described as an "Application to Guarantee a Term/Hire Purchase Application". This form also identifies the vehicle to be purchased and the schedule of repayments as between the supplier and the Company and provides details to the supplier of the proposed guarantor, the respondent. The respondent signed this form, again in his capacity as a director of the Company.
The third relevant document is headed "Term Purchase Schedule and Tax Invoice" ("the Term Purchase Schedule"). This document contains details of the owner of the vehicle, the hirer of the vehicle and the "guarantor", the respondent. Details of the amount financed and the term purchase repayment amounts are set out.
The Term Purchase Schedule contains a printed box headed "Execution by Guarantor" which is signed by the respondent.
Central to determination of this case, the Term Purchase Schedule also contains a printed box in the following terms: RECEIPT OF DOCUMENTS: The Supplier and you each acknowledge that you (and each of you if more than one) have received from the Supplier a copy of this Schedule, and a copy of the Booklet "Terms and Conditions". The respondent signed underneath this section on behalf of the Company and in his personal capacity as Guarantor.
The critical issues to be determined are the identification and effect of the "Booklet 'Terms and Conditions'".
All of the Hire Purchase Contracts were varied on or around 20 July 2011. A further "Term Purchase Schedule and Tax Invoice" containing relevantly identical detail was signed by the respondent on behalf of the Company and in his personal capacity as Guarantor.
The document that the appellant submits the Court should infer is the "Booklet 'Terms and Conditions'" described in the Term Purchase Schedule in each case is a blank pro forma document entitled "Term Purchase Agreement".
Clause 14 of the blank pro forma document entitled "Term Purchase Agreement" sets out the terms of a guarantee and indemnity: 14. GUARANTEE AND INDEMNITY 14.1 Reading this guarantee (a) Everything in this clause 14 is described below as this guarantee. (b) In this guarantee: Guaranteed Money means all moneys and damages that are owing (actually or contingently) by the Hirer to the Owner in connection with the agreement now or in the future, or any such moneys or damages that cease to be owing under any law relating to Insolvency for any reason. Guarantor means each person named in the rental schedule as a Guarantor. If there are two or more, it means each of them separately and all of them jointly. Hirer means each person named in the rental schedule as a Hirer. ….. 14.2 Guarantee The Guarantor unconditionally and irrevocably guarantees to the Owner the punctual payment to it by the Hirer of the Guaranteed Money. If the Hirer does not pay any of the Guaranteed Money when due, the Guarantor must, on demand, pay that amount to the Owner. 14.3 Indemnity If for any reason the Owner cannot recover the Guaranteed Money from the Hirer, or from the Guarantor under clause 14.2, or if it is not paid to the Owner for any reason, the Guarantor indemnifies the Owner against, and must pay to the Owner, on demand, the amount of all loss, claims, liabilities and expenses which the Owner may suffer or incur as a result. …
Clause 14.1 also requires identification of the "rental schedule" which contains the identity of the person named as "Guarantor".

Issues on the appeal

The appeal is in a narrow compass. Submissions made by both parties were commendably brief. The appellant identified the two issues in the case as being: 1. Whether the primary judge erred in failing to infer that the blank pro forma versions of the "Term Purchase Agreement" were given to the respondent by the appellant on the occasion of the variation of the Hire Purchase Contracts in 2011; and 2. If so, whether the primary judge erred in failing to infer that the respondent agreed to be bound by the blank pro forma versions of the "Term Purchase Agreement", including the guarantee provision in cl 14.
The primary judge concluded that: 1. he could not be satisfied that the "Term Purchase Agreement" comprised the relevant "'Booklet 'Terms and Conditions'" since: 1. although the "Term Purchase Agreement" could be described as a booklet, it was not titled as such; and 2. the "Term Purchase Agreement" was undated and did not feature the respondent's name, either on the front page nor throughout the rest of the document; and 1. acknowledging receipt of a document "does not mean, without more, that [the respondent] accepted its contents". The primary judge expected that parol evidence would be required to demonstrate this.

Did the primary judge err in failing to infer that the blank pro forma version of the "Term Purchase Agreement" was given to the respondent in July 2011?

The blank pro forma "Term Purchase Agreement" is dated December 2009, which is to say, after each of the Hire Purchase Contracts was executed. It contains blank spaces for the entries "Customer name" and "Customer number". The page which is apparently designed to contain a "Term Purchase and Tax Invoice" is blank save for a printed notation, "Staple Term Purchase and Tax Invoice here".
On the front page of the blank pro forma version of the "Term Purchase Agreement" it is stated that "This booklet contains: "Schedule and Tax Invoice"; "Terms and Conditions" and "Guarantee and Indemnity". That is, the pro forma "Term Purchase Agreement" itself describes its contents, when complete, as including a "Schedule and Tax Invoice" where none is contained in the versions of the document in evidence.
The blank pro forma versions of the "Term Purchase Agreement" came into evidence as annexures to two 13 March 2015 affidavits of an employee of the appellant, Mr Anagnostou, who described his role as being a "loss recovery manager". So far as the evidence reveals, Mr Anagnostou was not a person involved in any way in the execution or delivery of documents of the kind here in issue.
The only relevant evidence about the "Term Purchase Agreement" in the first case (relating to District Court No: 2014/276251) was in Mr Aganostou's affidavit as follows: 13. Each of the First Agreement, the Second Agreement and the Third Agreement incorporated a booklet of "Terms and Conditions" (Booklet). A copy of the Booklet is at tab 'M'.
There was no Tab "M" to the first affidavit; instead there were two Tab "L"s. Although given leave to reopen, the appellant did not file a correcting affidavit.
Subsequently, the primary judge permitted the appellant to "make an L an M" so the relevant annexure was treated as having been labelled "Tab M" to correspond with the text of the affidavit.
The only relevant evidence about the "Term Purchase Agreement" in the second case (District Court No: 2014/276253) was in Mr Anagnostou's second affidavit as follows: 13. Each of the First Agreement, the Second Agreement and the Third Agreement incorporated a booklet of "Terms and Conditions" (Booklet). A copy of the Booklet is at tab 'L'.
The primary judge allowed paragraph 13 of each affidavit to be read over objection "on the basis it carries no weight and is a matter for submission" (emphasis added).
It is to be noted that the primary judge also said he would understand paragraph 13 in each affidavit as meaning, "The booklet is called Term Purchase Agreement which contains terms and conditions". In oral argument in this Court Senior Counsel for the appellant relied on the primary judge's expression of this understanding of the meaning of paragraph 13.
Ultimately, however, the appellant's submission about how this Court should understand paragraph 13 was that "it is some evidence from the appellant that from their books and records this was the recovery manager's understanding of the booklet that applied at the time in respect of these contracts".
The appellant accepted that the first sentence of paragraph 13 in each of Mr Anagnostou's affidavits addressed a matter of law and that the primary judge was correct to afford it no weight. It was submitted, however, that the second sentence of paragraph 13 provided some evidence permitting the Court to draw an inference that the blank pro forma "Term Purchase Agreement" dated December 2009 comprised the "Booklet 'Terms and Conditions'" and that it was given to the respondent by the appellant on the occasion of the variation of the Hire Purchase Contracts in 2011. In the absence of evidence from the respondent, it was submitted that the Court should be bold in drawing that inference: SS Pharmaceutical Pty Ltd v Qantas Airways Ltd [1991] Lloyd's Rep 288 at 293; Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49.
The appellant noted that Mr Anagostou was not cross-examined on this evidence. This, however, does not address the problems inherent in paragraph 13 of Mr Anagnostou's affidavits for the following reasons: 1. first, the appellant accepted that the first sentence of paragraph 13 in each of Mr Anagnostou's affidavits addressed a matter of law and that the primary judge was correct to afford it no weight. If the first sentence was correctly afforded no weight, it logically follows that the mere identification of a "copy of the Booklet" in the second sentence takes the question of whether a particular document was given to the respondent in 2011 no further; 2. second, the evidence was, at best, limited to Mr Anagnostou's understanding based on what he had gleaned from the appellant's books and records. Mr Anagnostou was first employed by the appellant after all of the relevant events, in August 2012. There was no evidence that Mr Anagnostou had sought to inform himself of any practice of the appellant before 2011 concerning the delivery of documents when obtaining a guarantee in the context of hire purchase contracts; 3. third, the potential relevance of Mr Anagnostou's understanding needed to be judged from his role, which was limited to managing loss recoveries. His only responsibility potentially relevant to the present case was described as "Managing situations where customers (including guarantors) become insolvent"; 4. fourth, Mr Anagnostou gave no evidence of any practice or procedure within the appellant (at any time - including in 2011) from which it could be inferred that the blank pro forma "Term Purchase Agreement" dated December 2009 was provided to any of the appellant's customers, including the respondent; 5. fifth, the appellant now accepts - as it must, having regard to the December 2009 date borne by the Booklet ‑ that the relevant time to consider the evidence about the Booklet is July 2011, the date the Hire Purchase Contracts were varied. Mr Anagnostou gave no evidence of an understanding of a booklet that applied at that time.
It follows that, there was, in truth, no inference of the kind suggested by the appellant which was open on the evidence. There was no evidentiary foundation for a submission based on Joyce and S.S. Pharmaceuticals.
There is a further fundamental difficulty with paragraph 13 of Mr Anagnostou's affidavits. The only "Term Purchase Agreement" in evidence, ultimately as Exhibit M and Exhibit L to the relevant affidavits, was said by Mr Anagnostou to be incorporated in the "First Agreement, the Second Agreement and the Third Agreement" being defined terms in his affidavits.
It is plain in the context of each of Mr Anagnostou's affidavits that paragraph 13 is addressing the "First Agreement, the Second Agreement and the Third Agreement" being the original suite of agreements made between 2007 and 2009 and not the variation of those agreements in July 2011.
That is clear from the place in the affidavits the issue is addressed and the fact that separate defined terms, namely "First Variation", "Second Variation" and "Third Variation" are used by Mr Anagnostou when he addresses the documents which evidence the variation of the Hire Purchase Contracts in July 2011. No attempt was made in Mr Anagnostou's affidavits to suggest that anything was given to the respondent by the appellant at the time of those variations in 2011.
It is also relevant to note that before the primary judge, the appellant was given leave to reopen its case to address deficiencies in the proof of the "Booklet 'Terms and Conditions'" which had been identified by counsel for the respondent. Those deficiencies were squarely raised on the first day of the trial. The appellant reopened its case on the third day of the trial. Nothing was done to address this issue. A further affidavit of Mr Anagnostou was read, however that affidavit principally addressed the service of various notices on the respondent after 2011 and took the matter no further. This is significant in circumstances where the appellant now submits that this Court should infer that the blank pro forma "Term Purchase Agreement" dated December 2009 was provided by it to the respondent in July 2011.
Finally on this issue, the appellant, relying on passages in Lief Investments Pty Ltd v Conangra International Fertilizer Company (Court of Appeal (NSW), Mason P, Sheller and Beazley JJA, 16 July 1998, unrep) and Smith v South Wales Switchgear Ltd [1978] 1 All ER 18, submitted that the Court should do its best to infer what the relevant "booklet" containing terms and conditions was and, having done so, should conclude that the relevant "booklet" was the blank pro forma version of the "Term Purchase Agreement".
The relevant passage in Lief Investments provides: In a context where the purchaser had sent one version to the supplier which had raised no question about its terms and a few days afterwards proceeded with the work, the House of Lords [in Switchgear] resolved the doubt by the comparatively simple process of identifying the conditions as those contained in the version most recently revised before the date of the contract…the Court should do its best to identify the terms intended if there is some doubt.
The premise upon which that passage is based is absent in the evidence here. The relevant "context" is not that the appellant had sent an earlier version of the "booklet" to the supplier. There is an evidential void about what, if anything, was sent in 2007‑2009 when the Hire Purchase Contracts were executed or in July 2011 when they were varied.
For these reasons, the primary judge did not err in failing to infer that the blank pro forma version of the "Term Purchase Agreement", being Exhibit M and Exhibit L to the affidavits of Mr Anagnostou, was given to the respondent in July 2011.

Should the Court infer that the respondent agreed to be bound by clause 14 of the blank pro forma versions of the "Term Purchase Agreement"?

It will be recalled that cl 14 of the blank pro forma versions of the "Term Purchase Agreement" contains a guarantee and indemnity clause.
As to the second issue, the primary judge concluded that: 28. Further, just because the Defendant acknowledges receipt of an "uncertain" document (as to its description) does not mean, without more, that Mr Gardiner accepted its contents. There is no parol evidence in this to explain or amplify the circumstances of Mr Gardiner signing under "Receipt of Documents", nor could there be in this case as the pleading of a wholly express written contract dictates.
His Honour found there to be "considerable uncertainty" given that the Term Purchase Agreement was not titled "booklet", it was not dated and it does not have the name of the respondent or the Company on it anywhere.
His Honour, in finding that the appellant would have needed parol evidence to connect the Term Purchase Schedule with the "Booklet 'Terms and Conditions'" relied upon, at [29], the following statement from Ballantine v Harold (1893) 19 VLR 465 at 468: It appears to me that what is necessary is this, that the documents when looked at must fit into one another so naturally and reasonably that it does not require parol evidence to connect the one with the other.
The appellant submitted that the primary judge misunderstood Ballantine v Harold and did not need to have recourse to parol evidence. It was submitted that for incorporation by reference, "the reference may be an intrinsic expression or feature which may by reasonable inference connect the one document with the other…": Ballantine v Harold at 469 - 470 per Madden CJ.
The appellant submitted that, therefore, the primary judge applied "too strict a test" given that it was open to his Honour to make a "reasonable inference" that the documents were connected based on their text alone.
The appellant submitted that there were two pieces of evidence linking the Term Purchase Agreement with the "Booklet 'Terms and Conditions'": 1. the receipt of documents acknowledgment signed by Mr Gardiner in the Term Purchase Schedule: The Supplier and you each acknowledge that you (and each of you if more than one) have received from the Supplier a copy of this Schedule, and a copy of the Booklet "Terms and Conditions". and 1. Mr Anagnostou's evidence in paragraph 13 of each of his affidavits that the Hire Purchase Contracts incorporated a booklet of terms and conditions, being the booklet attached to his two affidavits sworn on 13 March 2015. The appellant submitted that Mr Anagnostou's affidavits "obviously" refer to the Hire Purchase Contracts, as varied in 2011.
The appellant submitted that this clearly demonstrated that Mr Gardiner was bound to the guarantee in cl 14 of the blank pro forma "Term Purchase Agreement".
I have addressed the deficiencies in Mr Anagnostou's evidence in detail in dealing with the first ground of appeal and, for the reasons there given, have concluded that the appellant failed to prove that the blank pro forma version of the "Term Purchase Agreement" was given to the respondent in July 2011.
Strictly speaking, that conclusion is sufficient to dispose of the additional submission that there were two pieces of evidence linking the "Booklet 'Terms and Conditions'" referred to in the Term Purchase Schedule with the blank pro forma "Term Purchase Agreement".
I will however briefly address the "receipt of documents acknowledgment" signed by Mr Gardiner in each of the Term Purchase Schedules in the context of the facts proven by the appellant.
The acknowledgment by the respondent that a document had been received by him from the appellant does not identify the blank pro forma "Term Purchase Agreement".
It will be recalled that the appellant accepted that the "Term Purchase Agreement" was printed on 12 December 2009. All of the Hire Purchase Contracts were entered into prior to December 2009. Temporally, the "Term Purchase Agreement" in evidence could not have been a document received by the respondent when the Hire Purchase Contracts were originally signed.
Contrary to the appellant's argument, Mr Anagnostou's evidence provides no evidentiary foundation for a conclusion about what document was received by the respondent when the Hire Purchase Contracts were varied in 2011. The appellant failed to identify the critical document its case depended upon.
In addressing a possible connection between the documents here in issue, in a particular case it may be sufficient to refer to an intrinsic expression or feature in the relevant documentation from which a reasonable inference may be drawn to connect one document with another.
The problem in the present case, however, is that there was no such intrinsic expression or feature in the relevant documentation from which such an inference could be drawn. Such inferences as arise on the documentation here point to the contrary conclusion. In particular, on the front page of the blank pro forma version of the "Term Purchase Agreement" it is stated that "This booklet contains: "Schedule and Tax Invoice"; "Terms and Conditions" and "Guarantee and Indemnity". The "Term Purchase Agreement" itself describes its contents, when complete, as including a "Schedule and Tax Invoice" where none is contained in the versions of the document in evidence. If any inference arises, it is that the blank pro forma "Term Purchase Agreement" is not the "Booklet 'Terms and Conditions'" referred to in the Term Purchase Schedule. There is no intrinsic expression or feature in the language used in the two documents which connects one with the other.
In the circumstances here, if the appellant wished to connect the Term Purchase Schedule with the "Booklet 'Terms and Conditions'", it would have needed to lead some relevant evidence of that connection. This it failed to do, despite having ample opportunity to do so, even after the deficiencies in its case were drawn to its attention.
The primary judge did not err in failing to infer that the respondent agreed to be bound by cl 14 of the blank pro forma versions of the "Term Purchase Agreement".

Conclusion and Orders

For these reasons, the appeal in each matter should be dismissed.
I propose the following orders in the appeal from the orders in each of District Court proceedings No: 2014/276253 and No: 2014/276251: 1. Leave to appeal granted; 2. Appeal dismissed; 3. The appellant pay the respondent's costs as agreed or assessed.

Endnotes

See below (at [50]).
(1862) 4 De GF & J 367 (at 376); 45 ER 1225 (at 1229) per Lord Westbury LC.
[1987] HCA 15; (1987) 162 CLR 549 (at 569); see also Relwood Pty Ltd v Manning Homes Pty Ltd [1990] 1 Qd R 481 (at 487) per Lee J, with whom Macrossan CJ and Thomas J agreed; Mercantile Credits Ltd v Harry [1969] 2 NSWLR 248; Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 (at 197 - 198) per Cooper J.
Harvey v Edwards, Dunlop & Co Ltd [1927] HCA 13; (1927) 39 CLR 302 (at 307).
Ballantine v Harold (1893) 19 VLR 465 (at 468) per Madden CJ (emphasis added).
Lief Investments Pty Ltd v Conagra International Fertiliser Co (Court of Appeal (NSW), 16 July 1998, unrep).
cf Jones v Dunkel [1959] HCA 8; CLR 59; (1959) 101 CLR 298.
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at [15]) per Hodgson JA (Beazley JA agreeing).
Blatch v Archer (1774) 1 Cowp 63 (at 65); 98 ER 969 (at 970) per Lord Mansfield; see also Armory v Delamirie (1722) 1 Stra 505; 93 ER 664; Jones v Dunkel.
Ho v Powell (at [16]), referring to Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389.
[2004] NSWCA 105; (2004) 49 ACSR 62 (at [42]) per Hodgson JA (Santow JA agreeing).
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [51] (Gleeson CJ and McHugh J).
Jones v Dunkel (at 312) per Menzies J.
SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd's Rep 288 (at 293) per Gleeson CJ and Handley JA, applying Insurance Commissioner v Joyce (1948) 77 CLR 39 (at 49). 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: 12 July 2016

Uniform Civil Procedure Rules 2005(NSW)r 51.22, r 51.22, that

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