The recent New South Wales Court of Appeal case of Williams Group Australia Pty Ltd v Crocker  NSWCA 265 serves as a warning to all businesses relying on personal guarantees to secure credit accounts for the supply of goods that you should not always assume a director will be bound by his or her electronic signature. The Supreme Court in NSW’s decided at first instance that a director was not bound by a guarantee with his electronic signature. Williams Group Australia appealed the decision.
- Williams Group Australia Pty Ltd (Williams) is a supplier of building materials;
- Mr Crocker, a builder was one of three directors of IDH Modular Pty Ltd (IDH) a company established to supply building modules for a specific project (IDH).
- IDH faxed a credit application to Williams together with an all-moneys guarantee by each of the three directors including Mr Crocker. The credit application and guarantees bore the electronically affixed signatures of each of the directors that were purportedly witnessed by IDH’s administration manager.
- Williams approved the credit application and supplied building materials on credit to IDH to the value of $889,534.35.
- IDH went into liquidation;
- Williams obtained summary judgement against two directors, but Mr Crocker defended the proceedings to enforce the guarantee.
- Mr Crocker usually worked out of the Brisbane office and the credit application was faxed from the Murwillumbah office of IDH.
- IDH used the HelloFax electronic system to affix electronic signatures to documents. The HelloFax system allowed users to upload their signature and then electronically apply it to documents.
- One of the co-directors provided Mr Crocker with his username and password for the HelloFax system, but Mr Crocker did not change his password. Accordingly, it would be possible with someone using his password to affix the electronic signature without Mr Crocker’s knowledge.
No Authority from Director
Mr Crocker denied that he had any knowledge of the Williams credit application and accompanying all-moneys guarantee and argued that the electronic signature had been affixed without his knowledge or authority.
Williams appealed and challenged the Court at first instance findings that IDH’s administration manager did not have ostensible authority to affix the electronic signature and that Mr Crocker did not ratify the use of the electronic signature. Williams sought to maintain its claim on appeal based on estoppels.
What about Ostensible Authority
Applying the reasoning of the High Court in Pacific Carriers Ltd v BNP Paribas  HCA 35 the Court of Appeal found that in order to successfully rely on the principle of ostensible authority, Williams had to establish that Mr Crocker in some way held out or represented that whoever placed his electronic signature on the relevant documents (and provided the documents to Williams ) was authorised by Mr Crocker to do so. It is important to note that the representation as to authority must be made by Mr Crocker and not by the person affixing the electronic signature (in this case an unknown person). The Court.
Williams also attempted to argue that Mr Crocker ratified the use of his signature by subsequently logging into the systems as he would have seen a list of documents previously completed using the system. The Court of Appeal rejected the ratification argument as the facts did not establish that Mr Crocker ignored the obvious because the list would only have referred to a credit application and not the “guarantee”.
Williams argued that Mr Crocker should be estopped from denying that he is liable under the guarantee in circumstances where Williams relied on the electronic signature, Mr Crocker registered as user on the HelloFax system and Mr Crocker’s authorisation of the administration manager or another employee of IDH to affix his signature by allowing them access to his password. The Court of Appeal made a obiter finding that estoppels did not arise because the evidence did not establish any representation by Mr Crocker to Williams as to the authenticity of his signature on the guarantee or his authorisation to anyone to place his signature on the guarantee. The mere witnessing of an electronic signature by the administration manager did not give rise to estoppel.
Lessons for Credit Managers
Credit Managers and business owners should not assume that a person affixing an electronic signature of a director on a personal guarantee has authority to do so, but should always confirm so with director’s authority. A simple email from Williams to Mr Crocker confirming that he authorised the administration manager to use his electronic signature for the specific guarantee may have avoided the dispute about liability under the guarantee.
Have a query regarding electronic signatures as Directors Guarantees?
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