Amos v Genr-8 Pty Ltd

[2013] VCC 1459

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised from recording of proceedings
Not Restricted

COMMERCIAL LIST
EXPEDITED DIVISION

Case No. CI-12-00301

CHARLES SCOTT AMOS	Plaintiff
v
GENR-8 PTY LTD (ACN 107 772 323) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4 June and 21 October 2013
DATE OF JUDGMENT:	21 October
CASE MAY BE CITED AS:	Amos v GENR-8 Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2013] VCC 1459

REASONS FOR JUDGMENT
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Catchwords: Terms Contract for sale of land – claim for contractual interest against guarantors – judgment for plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and counterclaim Defendants	Mr S. Rowland	Aughtersons, solicitors
For the Third Defendant	Mr L. Tarrant (in person)
For the Fourth Defendant	No appearance

HER HONOUR:

1       This is a claim pursuant to a terms contract for the sale of a property known as 18 Swift Way, Dandenong South. 

2       By orders of 19 August, 2013, judgment was given for the plaintiff against the first and second defendant purchasers in an amount of $85,447.65 plus interest and costs (which damages also included damages for trespass).

3       The only claim that remains is against the third and fourth defendant guarantors for contractual interest under the contract.

Background

4       By contract for the sale of the property dated 27 August 2010 the plaintiff sold the property to the first and second defendant purchasers for an amount of $900,000. A deposit was payable within 30 days and the balance payable twelve months from the date of possession.

5       The contract included a guarantee which was entered into by the third and fourth defendants. 

6       On 30 September 2010 the deposit was paid and possession taken by the first and second defendant purchasers. 

7       During the period October 2010 to March 2011, monthly interest payments of $6,750[1] were made.

[1]Being 10% of the outstanding amount of $810,000 (divided by 12).

8       During the period, between April and August 2011, inclusive (5 months)  no interest was paid.

9       By default notice of 25 August 2011 the purchasers were served with notice of default, which was not remedied such that the contract terminated on 9 September 2011.

10      The purchasers, however, remained in possession.

11      This proceeding was issued on 23 January 2012.

12      Following application for delivery of possession, his Honour Judge Shelton ordered the delivery up of possession by order of 10 July 2012 (although the purchasers did not give up possession until September 2012).

Procedural matters

13      The matter was heard over the course of 3 days (part heard).

14      At trial, Mr Amos was initially unrepresented, but was later represented by Aughtersons. He gave oral evidence, but was not cross examined.

15      As indicated already, judgment has already been given for the plaintiff against the first and second defendant purchasers. Their counterclaim was also struck out (pursuant to the terms of a self-executing order which was not opposed). 

16      The fourth defendant was initially represented by Commercial and Legal Solutions. However, Commercial and Legal Solutions today sought, and were granted leave, to cease to act in this matter. Prior to doing so, Mr Chimonis confirmed that, although the fourth defendant was aware that this matter was listed for trial, he was not intending to appear to defend the matter, nor to prosecute any counterclaim.

17      The third defendant, Mr Tarrant, appeared in person. He also indicated that he did not intend to generally defend the matter or to prosecute any counterclaim.

18      He  did however produce a document (Exhibit 1) signed by himself, which appeared to suggest that he regarded himself as absolved from any further liability on the guarantee by reason of “representations” or “information” provided by Mr Gardiner (the fourth defendant). The matter, however, did not appear to give rise to any defence in so far as the relevant claim in front of me is concerned; that is, a claim on the guarantee made by Mr Amos.

19      Mr Tarrant did not otherwise seek to cross examine Mr Amos, nor did he lead any further evidence from himself or from anybody else (although he was advised of these entitlements).

Statutory interest

20      Clause 2 of the contract of sale[2] provides as follows:

The purchaser shall pay interest to the vendor from the date of possession on the balance of purchase moneys outstanding under this contract from time to time calculated at the rate of 10 per cent per annum and payable calendar monthly in arrears. The first such payment of interest shall be due at the expiration of thirty days from the date of possession, and calendar monthly thereafter. Provided however that if the purchaser shall make the said interest payments on or before their due date then interest shall be payable at the rate of 8 per cent per annum in lieu of 10 per cent per annum.

[2]Annexed to Mr Amos’s affidavit of 6 June 2012 at CA1 (exhibit C).

21      Mr Amos gave evidence that he was not paid for the relevant interest payments after March of 2011.[3] 

[3]See paragraph 3 of the affidavit of Mr Amos of 6 June 2012 (exhibit C).

22      Pursuant to clause 2, the amount owed is therefore $33,750  ($6750 x 5).

23      The execution of the guarantee was admitted by the third and fourth defendants.[4] 

[4]Paragraph 21 of the Defence and Counterclaim.

24      Pursuant to that guarantee, if there was any default in payment of interest the third and fourth defendants were liable, on demand, to pay that interest.

25      A demand is also made out by reason of paragraph 23 of the Statement of Claim.

26      Given the matters set out herein and the absence of any sustainable defence raised before me, I am satisfied that Mr Amos is entitled to judgment for the contractual interest he seeks at $33,750. 

27      Although there appeared to be some claim based on alleged representations in the counterclaim (at para 35A), no evidence was led in support of such claim. It follows that the third and fourth defendant’s counterclaim should be dismissed.

28      Counsel for the plaintiff also established before me an entitlement to statutory interest in an amount of $6,178.22. Mr Tarrant was given an opportunity to check that figure, and raised no issues about that quantum.

Conclusion

29      The orders of the court will therefore be as follows:

(i)     There be judgment for the plaintiff against the third and fourth defendants in the amount of $33,750 plus interest of $6,178.22;

(ii)    The third and fourth defendants are to pay the plaintiff’s costs of the proceeding to be taxed on the scale in default of agreement;

(iii)   The third and fourth defendants’ counterclaim is dismissed.

SCHEDULE
Charles Scott Amos	Plaintiff
and
GENR-8 Pty Ltd (ACN 107 772 323)	First Defendant
and
TRCT Pty Ltd (ACN 137 065 091)	Second Defendant
and
Leon Tarrant	Third Defendant
and
Anthony Gardiner	Fourth Defendant
and
GENR-8 Pty Ltd (ACN 107 772 323)	First Plaintiff by Counterclaim
and
TRCT Pty Ltd (ACN 137 065 091)	Second Plaintiff by Counterclaim
and
Leon Tarrant	Third Plaintiff by Counterclaim
and
Anthony Gardiner	Fourth Plaintiff by Counterclaim
and
Charles Scott Amos	First Defendant by Counterclaim
and
Charles Amos Pty Ltd (ACN 006 025 912)	Second Defendant by Counterclaim