CONTRACTS — whether second defendant signed guarantees — whether second defendant intended to be bound by guarantees
CONTRACTS — parties — privity — trust — whether trustees are parties to contract to which trust is a party
Quick Take
1A person who signs a document via Docusign as 'Guarantor' is bound by the guarantee obligations in the contract, applying Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd; the signatory bears the onus of proving someone else used their electronic signature and mere assertion of shared email access is insufficient.
2Consideration for a guarantee need not flow directly to the guarantor; forbearance from suing on a prior debt and continuation of credit to the principal debtor constitute sufficient consideration.
3Where a loan agreement names a superannuation fund as lender, the trustees of that fund are properly regarded as the contracting parties applying ordinary principles of construction, and a guarantor cannot avoid liability by arguing the trust (rather than its trustees) was the named party.
