Ramsay Health Care Australia Pty Limited v Adrian Compton

1. [1]

   HIS HONOUR: The plaintiff (or Ramsay) sues the second defendant (or Mr Compton) for $9,810,312.33 as at 19 February 2015 pursuant to a Guarantee and indemnity which Ramsay claims Mr Compton provided in respect of the obligations of the first defendant company (Medichoice) to Ramsay under a Distribution and Group Purchasing Agreement (the Agreement) which Ramsay and Medichoice entered into in November 2012.

2. [2]

   Ramsay alleges that on 8 November 2012 Mr Compton bound himself as guarantor in its favour on the terms of a written instrument entitled Guarantee and indemnity (the Guarantee).

3. [3]

   Clause 3.1 of the Guarantee provides that the Guarantor irrevocably and unconditionally guarantees to Ramsay the payment of the Guaranteed Money on time and in accordance with the Agreement. Guaranteed Money is defined to mean all money that Medichoice is or may be liable to pay Ramsay on any account whatever under, in relation to or arising from Medichoice’s performance, or purported performance, of its obligations under the Agreement.

4. [4]

   On 8 November 2012, Mr Compton appended his signature to a document headed Signing page (the first Signing page). Ramsay itself later signed an electronically transmitted copy of the same page bearing Mr Compton’s (electronically transmitted) signature. On 28 November 2012 Mr Compton appended his signature to a second Signing page (the second Signing page) in the same form as the 8 November 2012 version. Ramsay claims that by his signatures Mr Compton bound himself to the Guarantee. Ramsay relies primarily on the 8 November 2012 Signing page, and as a fall-back position on the 28 November 2012 one.

5. [5]

   Mr Compton admits signing but denies that his signature on the Signing pages was assent to the Guarantee because, he says, the Signing pages do not pertain to the Guarantee but were signed as stand-alone documents intended to signify his assent to a different proposed Guarantee under which he would not incur any personal liability to Ramsay.

6. [6]

   Quantum is not in dispute.

The Agreement

1. [7]

   Ramsay operates private hospital facilities in Australia and other countries. In March 2010 Ramsay invited expressions of interest for the provision of services by a distributor including the procurement, logistics, and inventory management of products from point of manufacture to its hospitals.

2. [8]

   The shares in Medichoice are owned by Mr Compton and his wife Amy. Mr Compton is a director.

3. [9]

   By Letter of Intent dated 15 April 2010, Ramsay appointed Medichoice to be its preferred distributor to Ramsay of various products. Although the Letter of Intent contemplated the parties signing a contract by 30 June 2010, this only occurred in November 2012.

4. [10]

   Under the Agreement, for a period of three years from 1 July 2010, with an option period of two years, Medichoice would import medical products and was appointed Ramsay’s distributor to coordinate the procurement, importation, logistics and inventory management of the products.

5. [11]

   The Agreement made provision not only for Medichoice to sign but also for Mr Compton (defined as the Guarantor) to sign in his personal capacity. On 7 November 2012 Mr Compton signed it but only in his personal capacity and not on behalf of Medichoice. As appears later, this was subsequently corrected. Ramsay signed it on 12 November 2012.

6. [12]

   Clause 27.1 of the Agreement provides that the Guarantor must on or before the date of this Agreement provide to Ramsay the Director’s Guarantee signed by the Guarantor. By cl 1.1 Director’s Guarantee is defined to mean the “Deed of Guarantee and Indemnity of Performance in the form provided at Annexure D.” There was, however, no Annexure D.

Mr Compton’s proposed sale of Medichoice

1. [13]

   Sometime in early 2012 Mr Compton started to give consideration to selling Medichoice or its business and he commenced discussions with Paul Dickson, who had previously worked for Ramsay but had left to establish a business named Prius Healthcare which was conducted by his company, DP Healthcare Solutions. Mr Compton says that negotiations with Paul Dickson progressed to the point of an agreed price for the purchase of the Medichoice business and that Paul Fitzmaurice, a Ramsay executive, on behalf of Ramsay approved of the purchase.

2. [14]

   As at 7 November 2012, Mr Compton was apparently still in discussions with Mr Dickson. As at that time, under the Letter of Intent the arrangement between Ramsay and Medichoice was to expire on 30 June 2013 and Mr Compton had sought an extension to 31 December 2013, which was required by Mr Dickson.

3. [15]

   On 7 November 2012, there was a conference call between, amongst others, Mr Compton, Anna Stevis (an associate of Mr Compton and a director of Medichoice since 26 August 2011), Paul Fitzmaurice and Kate Robertson (Ramsay’s Corporate Counsel). After this conference, Mr Compton sent his minutes of it to Anna Stevis. The minutes read:

4. [16]

   I interpolate that on 4 April 2013, Paul Dickson informed Mr Compton that Prius no longer wished to pursue the purchase of Medichoice because Ramsay was intending to launch its own medical consumables business.

The first Signing page

1. [17]

   On 7 November 2012 at 3.50pm, Kate Robertson sent the following email to Mr Compton:

2. [18]

   It is not in dispute that the “Guarantee and Indemnity attached” was the Guarantee, including (a then unsigned) Signing page.

3. [19]

   Later that same day, Mr Compton emailed Kate Robertson:

4. [20]

   And she replied:

5. [21]

   On 7 November 2012, Mr Compton signed a “Declaration by Guarantor”, witnessed by a solicitor, Jennifer McDermott, in the following terms:

The second Signing page

1. [22]

   On 16 November 2012 at 11.15am, Kate Robertson emailed Mr Compton and others including Paul Fitzmaurice and Anna Stevis as follows:

2. [23]

   On 16 November 2012 at 3.05pm, Anna Stevis emailed Mr Compton (forwarding Kate Robertson’s 11.15am email):

3. [24]

   Mr Compton responded at 3.57pm:

4. [25]

   At 5.46pm Mr Compton emailed Anna Stevis responding to her 3.05pm email:

5. [26]

   On 23 November 2012, Kate Robertson emailed Anna Stevis, Mr Compton and Paul Fitzmaurice:

6. [27]

   Anna Stevis then emailed Mr Compton:

7. [28]

   And Mr Compton replied:

8. [29]

   Anna Stevis finally emailed Kate Robertson:

9. [30]

   On 28 November 2012, Mr Compton appended his signature to the second Signing page, witnessed by Jennifer McDermott. He also signed another Declaration of Guarantor before Jennifer McDermott in the same form as the one attested by her on 7 November 2012.

10. [31]

    The same day, Mr Compton emailed Anna Stevis:

11. [32]

    On 4 December 2012, Kate Robertson emailed Mr Compton, Anna Stevis and Paul Fitzmaurice:

12. [33]

    Later the same day, Anna Stevis emailed Kate Robertson:

13. [34]

    On 29 October 2013, Ramsay’s solicitors made demand of Medichoice and Mr Compton (under the Guarantee) of the amount then outstanding under the Agreement.

14. [35]

    Mr Compton’s Contentions in his Commercial List Response are brief. He “denies that he executed the Guarantee… or otherwise guaranteed the obligations of Medichoice to Ramsay as alleged”.

15. [36]

    He provides the following particulars to his denial:

16. [37]

    Counsel for Mr Compton ultimately articulated Mr Compton’s defence as follows:

17. [38]

    In accordance with directions of the Court, Mr Compton swore and filed an affidavit on 24 November 2014.

18. [39]

    Mr Compton’s evidence at the trial consisted of his own affidavit and the tender of some documents. Affidavits by Jennifer McDermott dated 19 November 2014 and Anna Stevis dated 21 November 2014, were filed and served but not read.

19. [40]

    Mr Compton’s affidavit was read without him being required for cross-examination due to his apparent indisposition when the hearing commenced. He was not in New South Wales but was apparently in Queensland (where he lives) having medical treatment. The Court having refused an application by him to vacate the hearing, Ramsay elected to proceed on the basis that his affidavit be read without Mr Compton having to be available for cross-examination.

20. [41]

    He deposes to having been diagnosed in about 2002 with Major Depressive Disorder and Bipolar II Disorder.

21. [42]

    He says that he understood that the “Director’s guarantee” was to be a personal commitment to be given by him as a director of Medichoice, that Medichoice would fulfil its obligations to Ramsay but would not expose him to personal liability for moneys owed by Medichoice to Ramsay and that the only security for the performance of obligations of Medichoice under the Agreement would be a charge in favour of Ramsay over the assets of Medichoice, which he understood to comprise the inventory or stock paid for by Ramsay. He says that at no time did he agree to there being any other security. He says that on a number of occasions of which he does now not have specific recollection he said to Paul Fitzmaurice, Kate Robertson and Paul Dickson (a consultant to Ramsay) that he would not sign a guarantee that made him personally liable for liabilities of Medichoice to Ramsay.

22. [43]

    He says that he received from Kate Robertson on a number of occasions a Guarantee and indemnity document but did not at any time agree to sign a document that he understood would impose personal liability on him for liabilities of Medichoice to Ramsay.

23. [44]

    He says that during the 7 November 2012 conference call Kate Robertson said words to the effect:

24. [45]

    He says that subsequent to this call (but he does not identify when) Kate Robertson said words to the effect:

25. [46]

    He says he recalls signing a Declaration by Guarantor which in the presence of Anna Stevis he struck out the reference to Guarantee and indemnity but does not have a copy of it. He gave it to Anna Stevis to give to Kate Robertson and did not keep a copy.

26. [47]

    He says the reason why there are two Signing pages and two Declarations by Guarantor is that Kate Robertson lost the first pages he had signed.

27. [48]

    He says he signed the Signing pages and Declarations of Guarantor intending and believing that they were for the security to be given by Medichoice to Ramsay over the stock paid for by Ramsay and that the blank Signing pages appear to have been placed by Ramsay without his authority, consent or knowledge behind copies of the Guarantee.

28. [49]

    He says Ramsay never gave him the original or a copy of the Guarantee.

29. [50]

    He says that in the course of his discussions with Paul Dickson, Paul Dickson said that he would not purchase the business if he had to give Ramsay a personal guarantee.

30. [51]

    Mr Compton’s factual case is that the Signing pages were never intended to be part of or to connote acceptance of the Guarantee, but were stand-alone documents intended to be assent to some other form of guarantee.

31. [52]

    Ramsay has the onus of establishing the existence of the contract on which it relies. It must therefore establish that Mr Compton’s signature connoted agreement to the terms contained in the Guarantee. It is not for Mr Compton to establish otherwise.

32. [53]

    If Ramsay establishes this, Mr Compton bears the onus of establishing the plea of non est factum.

33. [54]

    Ramsay is entitled to succeed because:

Signature

1. [55]

   A contract is formed when a reasonable person would believe that, based on their words and behaviour, the parties intended to contract. This is an objective test, which in most cases can be administered by determining whether there has been an offer by one party to be bound on certain terms accompanied by an unqualified acceptance of that offer communicated by the other party to the offeror. See generally: Paterson, Robertson, and Duke, Principles of Contract Law, (4th ed 2011, Thomson Reuters) at [1.15] and [12.10]; J W Carter, Contract Law in Australia, (6th ed 2013, LexisNexis Butterworths) at [3.06].

2. [56]

   The act of signing a document known and intended to affect legal relations is an act that which itself ordinarily conveys a representation to a reasonable reader of the document that the signatory has either read and approved its contents or is willing to take the chance to be bound by them whatever they might be: Toll (FGCT) Pty v Alphapharm Pty Ltd (2004) 219 CLR 165 at 180 – 181.

3. [57]

   The general rule (sometimes referred to as the rule in L’Estrange v Graucob) is that a party will be bound by the terms contained in a contractual document he or she has signed regardless of whether or not the party has read or understood it or understood the terms: L’Estrange v F Graucob Ltd [1934] 2 KB 394.

4. [58]

   The rule in L’Estrange v Graucob does not apply where a signatory establishes the plea of non est factum. The plea (meaning “it is not made” or “it is not my deed”) is available where the party did not sign at all and in a limited range of circumstances where it was signed.

5. [59]

   The Guarantee incorporating a Signing page was sent to Mr Compton under the cover of Kate Robertson’s email of 7 November 2012. The description Guarantee and indemnity used in that email refers to the Guarantee. Ramsay’s requirement was for him to provide “signed versions” of that instrument and return them by email. On the same day, Mr Compton responded that he would action as per the email. He unequivocally communicated his agreement to comply with Ramsay’s requirement that he sign the Guarantee. His acceptance was, in turn, acknowledged by Kate Robertson in her following email.

6. [60]

   On 7 November 2012, in the presence of a solicitor Mr Compton solemnly and sincerely declared that he was the Guarantor under the Guarantee and indemnity between Medichoice and Ramsay and that he had received independent advice regarding that instrument and after having received that advice had freely and voluntarily signed the Guarantee and indemnity. No other instrument satisfying that description had been sent to him. Indeed there is no evidence that any instrument satisfying the description of the type of guarantee he says he was prepared to give having been brought into existence.

7. [61]

   Attached to the Agreement, which Mr Compton signed, was a General security Deed. That Deed defines “Director’s Guarantee” to mean “the document titled ‘Guarantee and indemnity’ dated on or about the date of this document between the Secured Party and Adrian John Compton”. The Guarantee satisfies this description.

8. [62]

   In her email of 16 November 2012, Kate Robertson acknowledged receipt of an emailed copy of the Guarantee from Mr Compton. The evidence does not establish when it was received, the transmitting email not being in evidence. Kate Robertson informed Mr Compton that a copy of the Guarantee and indemnity would be returned by email and post once signed by the Ramsay directors and the originals would be sent to him by post. The first Signing page bears Mr Compton’s electronically transmitted signature and also original signatures of the Ramsay directors. It is clear that Mr Compton returned that Signing page together with the Guarantee to Ramsay.

9. [63]

   In the same email, Kate Robertson asked Mr Compton to email three originals of the Guarantee and indemnity. Later that day Anna Stevis asked him by email whether he had sent through the originals. His responsive email was that he had and that they had gone to Warriewood (where Medichoice’s business was). There was no suggestion from Mr Compton that there was any difficulty with respect to the Guarantee. His outward behaviour is consistent only with a belief that he had executed it by then.

10. [64]

    On 23 November 2012, Kate Robertson sent a further execution page for the Guarantee and indemnity for Mr Compton’s signature. She recorded that Anna Stevis said that the originals of some of the documents were missing. Kate Robertson recorded that Anna Stevis intended asking Mr Compton to re-sign three each of the attached documents (these included the Declaration by Guarantor and a further execution page of the Guarantee). Again the reference to Guarantee and indemnity could only be the Guarantee now relied on by Ramsay.

11. [65]

    Anna Stevis emailed Mr Compton asking him to print three copies of each document (being the documents sent through by Kate Robertson – including a new Signing page) and asking him to post them back. He emailed his agreement to do so. Consistent with his agreement, he signed another Signing page in the presence of Jennifer McDermott on 28 November 2012. He emailed Anna Stevis that all Signing pages were in the overnight mail. On 4 December 2012, Kate Robertson emailed Mr Compton and Anna Stevis enquiring about the originals. Anna Stevis replied that she had the originals but was currently on leave. In the proceedings Ramsay produced the original of the second Signing page. It must have been handed over to Ramsay.

12. [66]

    Objectively viewed, both Signing pages were assent by Mr Compton to the Guarantee. The second Signing page was signed for no other reason than that the first Signing page with his original signature had been lost.

13. [67]

    I observe that whilst Mr Compton says that the blank Signing pages appear to have been placed by Ramsay without his authority, consent or knowledge, behind the Guarantee, nowhere in his affidavit does he say that when he signed the first Signing page it was not together with the Guarantee. Additionally, in her email of 23 November 2012, Kate Robertson undertook to attach the completed execution pages of the Guarantee and return the fully executed version to him. He did not demur. Rather, he proceeded to execute the second Signing page and have the original delivered back to Ramsay.

14. [68]

    If it were necessary I would make a finding that the evidence establishes subjective intention on the part of Mr Compton to bind himself to the Guarantee.

Non est factum

1. [69]

   In Petelin v Cullen (1975) 132 CLR 355 at 359 – 360 the High Court, in an often cited passage, said:

2. [70]

   Where mental infirmity is in question, the defence of non est factum must be distinguished from the defence that the instrument is voidable by reason of mental incapacity. Such a plea does not deny the execution of a document, but assumes the execution. It concedes that the mind, such as it was, went with the act of execution, but it asserts that the state of mind was such that if the other contracting party were aware of it that party ought not be allowed to insist upon the contract. The basis of the defence of non est factum is that in truth the document was not executed at all; PT Limited v Maradona Pty Ltd (1992) 25 NSWLR 643 at 673 and following.

3. [71]

   Mr Compton asserts no disability, educational or otherwise, which rendered him unable to read or reliant upon anyone else for advice.

4. [72]

   He does not say, and it is not suggested, that he did not read the Guarantee which Ramsay required.

5. [73]

   To the contrary, he twice signed a Declaration of Guarantor, upon which Ramsay was entitled to rely, that he had received independent legal advice regarding it and had freely and voluntarily signed it.

6. [74]

   He says that he signed the Signing pages intending and believing that they were for the security to be given by Medichoice to Ramsay over the stock paid for by Ramsay, but he does not explain how, after receiving the documents, he had such an intention and belief. He signed, understanding that his actions had legal consequences with respect to the giving of security. His minutes of the 7 November 2012 telephone conference reflect an understanding that he had to sign all documents required by Ramsay to get the extension he needed to negotiate with Paul Dickson.

7. [75]

   On his own evidence, his mind went with his signature.

8. [76]

   His case rises no higher than his ipse dixits that he told Ramsay (at an unspecified time) that he would not sign a guarantee making him personally liable; that he did not agree to sign a document that he understood would impose personal liability on him (but without saying that he did not understand that the Guarantee did so); and that Kate Robertson said that the Guarantee required by Ramsay was over the assets of Medichoice (but without saying that he did not understand the Guarantee to entail more).

9. [77]

   The difficulty is that he acted contrary to what he asserts was his position.

10. [78]

    At its highest, his complaint is that notwithstanding his declarations that he received legal advice, he was mistaken as to the legal effect of the contract to which he consciously committed himself.

11. [79]

    But he asserts no operative misrepresentation or vitiating mistake. He asserts no unconscionability or misleading or deceptive conduct. He pleads no estoppel on Ramsay’s part. He brings no cross-claim seeking relief under the Contracts Review Act 1980 (NSW) or rescission of the Guarantee.

12. [80]

    The evidence does not establish that he was in any way misled by Ramsay, or, that in committing himself, he relied on anything inaccurate conveyed by Ramsay. Ramsay did require, and got, security over Medichoice’s assets by way of general Security Deed which Mr Compton himself signed in addition to the Guarantee.

13. [81]

    Mr Compton’s evidence that Kate Robertson said that she was under pressure to get the documents signed and it would be easier for her to get Signing pages attached to the Guarantees over the assets of Medichoice is somewhat difficult to understand. It clearly conflates the Guarantee with the general Security Deed but, in any event, it must be a reference to the second Signing page. The issue of re-signing only arose because the first originals were lost.

14. [82]

    The plea of non est factum fails.

15. [83]

    There will be judgment for the plaintiff against the second defendant in the amount of $9,810,312.33.

16. [84]

    I will hear the parties on costs and any other issues which remain to be determined.