Court of Appeal

Nielsen v Capital Finance Australia Ltd & Ors [2014] QCA 139 ; [2014] 2 Qd R 459 (13/8588) Margaret McMurdo P and Muir JA and Douglas J 6 June 2014

Full-text: QCA14-139.pdf

Catchwords

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant commenced proceedings in the District Court claiming against the first respondent mortgagor $181,523.50 under a written chattel mortgage agreement and each of the second, third, fourth and fifth respondents the same sum together with interest pursuant to a written guarantee and indemnity – where the guarantee and indemnity was executed by the director of the second and fifth respondent companies – where the director also signed as guarantor on his own behalf and purported to sign separately on behalf of the appellant – whether the director’s signature was binding on the appellant at common law – whether non-compliance with s 69(2) of the Powers of Attorney Act 1998 (Qld) invalidated the signature

Summary Notes

General Civil Appeal – Guarantees - where the appellant commenced proceedings in the District Court claiming against the first respondent mortgagor $181,523.50 under a written chattel mortgage agreement and each of the second, third, fourth and fifth respondents the same sum together with interest pursuant to a written guarantee and indemnity – where the guarantee and indemnity was executed by the director of the second and fifth respondent companies – where the director also signed as guarantor on his own behalf and purported to sign separately on behalf of the appellant – whether the director’s signature was binding on the appellant at common law – whether non-compliance with s 69(2) of the Powers of Attorney Act 1998 (Qld) invalidated the signature – where the guarantee did not need to be executed as a deed – where the only formal requirement for its due execution was that it be in writing and signed by the appellant guarantor or a lawfully authorised person – where the arguments that an agent, whether appointed under a power of attorney or not, must sign in particular way if signing an instrument on behalf of the agent’s principal are unlikely to gain much traction – where the signature of Mr Heal was applied so as to bind the appellant under common law principles – where it is even apparent on the face of the document that Heal was purporting to sign on behalf of the appellant in that part of the signing clause; Heal signed opposite the appellant’s name, not his own – where elsewhere he had signed on his own behalf and on behalf of corporations – where subsection (3) is the only part of the section which addresses the consequences of compliance with the requirements of the section – where no provision addresses the consequences of non-compliance – where that in itself is significant – where a conclusion that non-compliance with subsection (2) results in invalidity would be inconsistent with the facilitative function of s 69, the express statement in the section of the consequences of compliance with particular requirements of the section and the absence of any indication that a failure to comply with subsection (2) results in invalidity – where there is nothing in Part 1, where s 69 is located, which suggests that the legislative purpose was to codify the law relating to powers of attorney or to otherwise interfere with the common law relating to principal and agent except as may appear from the words of the provisions of Part 1 – where it is found that non-compliance with s 69(2) did not prevent Mr Heal’s signature from binding the appellant. Appeal dismissed with costs.