ATL (Australia) Pty Ltd v Cui [2023] NSWSC 336

ATL (Australia) Pty Ltd v Cui [2023] NSWSC 336

The second defendant was aware he was entering into a personal guarantee, possessed business experience, and failed to prove non est factum or that the contract was unjust. The side letter agreement did not discharge the guarantee. The eleventh defendant is not liable under the Fifth Guarantee due to forged signature and lack of ratification or estoppel.

Jurisdiction
Australia
Judgment Date
06 April 2023
Procedural Posture
Commercial Claim Guarantee and Indemnity / Principal Judgment
Outcome
Judgment for plaintiff against second defendant; claim against eleventh defendant dismissed
Legal Topics
['non Est Factum' 'contracts Review Act 1980 (nsw)' 'guarantee Validity' 'contractual Fairness' 'forgery' 'discharge of Guarantor']
['guarantee and Indemnity' 'contract Law' 'bankruptcy'] ['non Est Factum' 'contracts Review Act 1980 (nsw)' 'guarantee Validity' 'contractual Fairness' 'forgery' 'discharge of Guarantor']

Case Brief

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Procedural Posture

Commercial Claim Guarantee and Indemnity / Principal Judgment

Legal Issues

  1. 1 ['Whether the second defendant is liable under the guarantee provisions in the loan agreement' 'Whether the plea of non est factum is established' 'Whether the contract was unjust under the Contracts Review Act 1980 (NSW)' "Whether a side agreement discharged the guarantor's liability" 'Whether the eleventh defendant (Arise Group Pty Ltd) is liable under the Fifth Guarantee' "Whether the purported signature of Arise Group Pty Ltd's director is a forgery" 'Whether ratification or estoppel binds the eleventh defendant']

Ratio Decidendi

The second defendant was aware he was entering into a personal guarantee, possessed business experience, and failed to prove non est factum or that the contract was unjust. The side letter agreement did not discharge the guarantee. The eleventh defendant is not liable under the Fifth Guarantee due to forged signature and lack of ratification or estoppel.

Court Disposition

Judgment for plaintiff against second defendant; claim against eleventh defendant dismissed

Orders

  • ['Judgment for the plaintiff against the second defendant in the sum of $16,737,057.68 inclusive of interest up to judgment.' "The second defendant is to pay the plaintiff's costs of the proceedings against him." "The plaintiff's claim against the eleventh defendant is dismissed with costs."]