Lisciandro, Cono v Official Trustee in Bankruptcy [1996] FCA 727

Lisciandro, Cono v Official Trustee in Bankruptcy [1996] FCA 727

The guarantee was enforceable against the appellant. Alminco had no actual or constructive knowledge of the appellant's position of disadvantage, nor did the circumstances reasonably put Alminco on inquiry as to such disadvantage. Mr Radford was not Alminco's agent in procuring the guarantee, nor could his conduct be attributed to Alminco under s 84(2) of the Trade Practices Act. The guarantee, though poorly drafted, could be construed to give effect to the parties' intention, making it enforceable. The application to adduce further evidence was rejected, as it would not have produced a different outcome and the appellant was bound by his forensic decisions at first instance.

Parties
Appellant: Cono Lisciandro; Respondent: Official Trustee in Bankruptcy; Creditor (not Party, But Appeared): Alminco Pty Ltd
Jurisdiction
Australia
Judgment Date
16 August 1996
Procedural Posture
Appeal / Judgment and Orders
Outcome
Appeal dismissed
Legal Topics
Guarantee Enforceability, Unconscionable Transaction, Agency, Construction of Guarantee, Proof of Debt, Admission of Debt, Further Evidence on Appeal
Bankruptcy Contract Law Trade Practices Guarantee Enforceability Unconscionable Transaction Agency Construction of Guarantee Proof of Debt +2 more

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Parties

Cono Lisciandro

Appellant

Official Trustee in Bankruptcy

Respondent

Alminco Pty Ltd

Creditor (not Party, But Appeared)

Procedural Posture

Appeal / Judgment and Orders

Legal Issues

  1. 1 Whether the guarantee given by the appellant to Alminco Pty Ltd was enforceable against him
  2. 2 Whether Alminco acted unconscionably or had knowledge of the appellant's position of disadvantage
  3. 3 Whether Mr Radford acted as agent for Alminco in procuring the guarantee

Ratio Decidendi

The guarantee was enforceable against the appellant. Alminco had no actual or constructive knowledge of the appellant's position of disadvantage, nor did the circumstances reasonably put Alminco on inquiry as to such disadvantage. Mr Radford was not Alminco's agent in procuring the guarantee, nor could his conduct be attributed to Alminco under s 84(2) of the Trade Practices Act. The guarantee, though poorly drafted, could be construed to give effect to the parties' intention, making it enforceable. The application to adduce further evidence was rejected, as it would not have produced a different outcome and the appellant was bound by his forensic decisions at first instance.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellant bankrupt is to pay Alminco Pty Ltd's costs of and incidental to the application to extend time, the application for leave to appeal, and the appeal.