Bendigo and Adelaide Bank Limited v Pickard [2019] SASC 123

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Facts

  • Bendigo and Adelaide Bank Ltd and others (“the Plaintiffs”) commenced proceedings against Kenneth Pickard and others (“the Defendants”).
  • The Plaintiffs claimed that the Defendants were guarantors under a loan deed, and that moneys were payable to it by the Defendants under that guarantee.
  • The Defendants were directors of Kenrop Pty Ltd (in liq) (“Kenrop”). Kenrop was the trustee of the K & A Pickard Family Trust, which had investments in Great Southern Group (“Great Southern”) projects.
  • Great Southern had facilitated multiple agribusiness managed investment schemes. Great Southern Finance Pty Ltd (“GSF”) and ABL Nominees Pty Ltd (“ABL”) offered finance to potential investors. All the GSG investment schemes failed.
  • The Plaintiffs claimed moneys from the Defendants as guarantors.
  • The Plaintiffs claimed that the Defendants had appointed Great Southern as their attorney to execute a loan deed by signing a loan application. After the moneys had been advanced to Kenrop, GSF then executed a loan deed on the Defendants’ behalf that guaranteed Kenrop’s liability to ABL and GSF.
  • The Plaintiffs argued that the loan application was a deed executed pursuant to s 127 of the Corporations Act 2001 (Cth).

Issues

  • Was the loan application a deed?

Held

  • The Supreme Court (Stanley J) held that the Plaintiffs could not rely on section 127 to reason that the loan application had been validly executed as a deed.
  • The Court held that section 127’s purpose was to allow a natural person to act for a company through a specific manner of signing. Section 127’s purpose was not to permit a company to execute a document which would not amount to a deed if a natural person had signed it.
  • Section 127(1) requires a document to be executed by two officers signing it. This means that there needs to be a single document that both officers sign, rather than two electronic signatures being sequentially applied to an electronic document.
  • The document was not properly executed as a deed and could not be enforced as one.

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