Background
Ms Lisa Miller and ELEM Investments Pty Ltd, trustee of the Lisa Miller Family Trust, sued Mr Darren Starling—Ms Miller’s estranged husband—to recover debts he allegedly guaranteed. The parties had been married; Ms Miller separated from Mr Starling in November 2018. Ms Miller is the sole shareholder and director of ELEM, which was incorporated in 1997. Mr Starling served as director of ELEM from October 2013 to February 2019. Both were involved with WetFix Pty Ltd, a water bottling business now in liquidation, which borrowed funds ELEM allegedly guaranteed.
The plaintiffs claimed Mr Starling guaranteed three loan agreements totalling approximately $14 million. Mr Starling denied signing any of the documents. The case proceeded at hearing over two days in June 2026, with Ms Miller’s counsel relying heavily on the Court Book of documents, while Mr Starling appeared self-represented via audiovisual link.
The Court’s Holding
Justice Sirtes found that ELEM failed to prove on the balance of probabilities that the loan agreements were genuine or that Mr Starling had signed them. The critical problem was that multiple different versions of the same loan documents existed within the court file and evidence, yet Ms Miller provided no satisfactory explanation for the discrepancies. Regarding the First Loan Agreement, three significantly different versions appeared: one in the Court Book at CB 1389–1402 (the 1FLA); one obtained from liquidators (the 2FLA); and one attached to Ms Miller’s affidavit filed with the Federal Circuit and Family Court (the 3FLA). These versions contained material differences in guarantor definitions, loan amounts, repayment dates, notice addresses, and execution pages. Ms Miller testified she did not know why multiple versions existed and suggested Mr Starling was confused, but the court found her demeanour “high-handed and dismissive” and her explanation inadequate.
The court noted that even the version ELEM relied upon at trial (the 1FLA) did not match the pleaded terms. For example, the document defined the Repayment Date as 31 March 2014 (over two years before execution) rather than 31 March 2019 as pleaded. The definitions of “Guarantor” also differed across versions. The court further ordered ELEM’s reinstatement after it had been deregistered in May 2026 due to non-payment of fees, but this did not cure the evidentiary problems with the loan documentation itself.
Key Takeaways
- A party claiming to enforce a loan guarantee must prove the agreement’s authenticity and the defendant’s signature on the balance of probabilities; unexplained document discrepancies may defeat this burden.
- Multiple versions of purportedly identical documents without satisfactory explanation undermine credibility and render the evidence unreliable.
- Essential terms in loan documents (repayment dates, parties, amounts, guarantor identities) must match the pleaded case; material discrepancies mean the document does not evidence the claimed agreement.
- When apparent criminal conduct emerges during proceedings—such as document fabrication or alteration—courts have a duty to refer the matter for investigation regardless of parties’ wishes.
Why It Matters
This decision underscores that in commercial disputes involving debt claims and guarantees, documentary evidence must be clear, consistent, and genuine. The existence of unexplained multiple versions of key agreements is a significant red flag that can collapse a plaintiff’s case entirely. Justice Sirtes emphasised that Ms Miller’s inability to explain discrepancies, combined with her evasive testimony, left the court unable to satisfy itself that the loan agreements were authentic or properly executed. The court’s willingness to invoke its obligation to refer apparent criminal conduct for investigation—regardless of whether parties wish to pursue it—demonstrates that procedural safeguards extend beyond the parties’ immediate interests.
For practitioners, the decision illustrates the critical importance of maintaining a single, clear, original or certified copy of financial agreements and the dangers of relying on multiple versions obtained from different sources without documentary support for any revisions. Courts will scrutinise whether a party can coherently explain why multiple versions exist and which is authentic, and failure to do so may result in dismissal of claims that might otherwise have merit.