Tranchita v Retravision (WA) Pty Ltd

[2001] WASCA 265

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Guarantee
3. › Personal guarantee
4. › Enforcement by creditor
5. › Summary judgment
6. › Whether guarantee vitiated by mistake, undue influence or unconscionable dealing
7. › Whether guarantor's failure to read document constitutes relevant mistake
1. Equity
2. › Mistake
3. › Unilateral mistake
4. › Written contract signed without reading
5. › Whether failure to read document constitutes serious mistake as to fundamental term
6. › Whether other party aware of and contributed to mistake
1. Equity
2. › Undue influence
3. › Presumed undue influence
4. › Commercial relationship between guarantor and creditor
5. › Whether relationship of guarantor and creditor gives rise to presumption of undue influence
6. › Whether absence of independent legal advice sufficient to establish undue influence
1. Equity
2. › Unconscionable dealing
3. › Special disadvantage
4. › Guarantor who did not read guarantee
5. › Whether inequality of bargaining power alone sufficient
6. › Whether failure to ensure independent advice renders enforcement unconscionable

Quick Take

A guarantor's failure to read a guarantee before signing does not constitute a relevant mistake in equity, nor does it establish a special disadvantage for unconscionability purposes, where the guarantor has commercial experience. The existence of a contractual mechanism to limit future liability (such as a termination-on-notice clause) is a significant factor weighing against equitable relief, particularly where the guarantor failed to exercise that right despite having legal advice.