Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. The plaintiff sues on what he alleges to be guarantees given by the defendant in respect of her husband's debts. The guarantees sued upon are both an oral guarantee (the "Oral Guarantee"), and a document purporting to have been a guarantee in written form (the "Written Guarantee"). The Written Guarantee was said to be executed by the defendant in India. The Oral Guarantee purportedly arose out of a telephone conversation. This telephone conversation is said to have occurred in circumstances where the defendant was in India, and the plaintiff was in New Zealand.

2. Neither party has made any attempt to confront the private international law issues which may arise in these circumstances. There could, for example, be a live issue as to the applicable law of both guarantees, however, foreign law has not been pleaded, and no party has suggested that the law of the alleged guarantees was other than the laws of New South Wales and, as such, I will decide the matter accordingly (Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 at [25]).

Background

3. The plaintiff claims to be the creditor of the defendant's husband, Jamir Ali ("Ali"). This indebtedness is said to have arisen through both advances, which the plaintiff made to Ali, and costs incurred by the plaintiff on Ali's behalf. Ali was not called in the proceedings, notwithstanding the fact that he was present in Court while they were being heard. The plaintiff has put on an affidavit which proves that indebtedness, which is uncontradicted. In those circumstances, I find that Ali is indebted to the plaintiff as he asserts, and that Ali's evidence in relation to that indebtedness would not have assisted the defendant's case.

The Oral Guarantee

4. The plaintiff says in his affidavit that while the defendant was in India, he rang her and introduced himself (they had never met before). The plaintiff says that after that introduction the following conversation occurred:

[17] Sometime in 2001 or 2002, I spoke to Parulunnessa who was in India over the telephone. I introduced myself to her and she said words to the effect "I know who you are and he has spoken to me about the debt owed to you."

[18] During this telephone call we had a conversation in words to the following effect:

a. Parulunnessa said words to the effect that "If my husband does not repay you, then I will repay you when I come to Australia".

b. She also said words to the effect of: "Please forgive him [Jamir], and do not take any legal action".

c. Parulunnessa further said that: "Without your assistance, it was impossible for Jamir to go to New Zealand and to get his permanent residency. I understand this, and so, from now on, I am taking the full responsibility for his all debts and any and all other monies he owes to you. Please wait until I arrive to Australia and get Australian permanent residency. I personally will contact you. I sincerely undertake that from now on his debts are my debts. From now on I will be his guarantor. I will repay the two judgments [sic] debts, and all other money you loaned to him, with 10% interest per year". I do not now recall whether Parulunnessa said it was going to start in 2001 or 2002 with respect to the interest.

d. After Parulunnessa said this, in response I said words to the effect of: "How can I trust you?"

e. In response, Parulunnessa said words to the effect that "I understand you. I understand that it is very hard for you to trust me. But all I can say is that I am not Jamir, I am a trustworthy loyal woman. You will find that I am a very trustworthy woman."

f. In response I said words to the effect of "I have no choice. I trust you."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196fa75e279f68d50a0ceb18)

Disclaimer: Curated by HT Syndication.