Annee Pty Limited v Eliopoulos

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Annee Pty Limited v Eliopoulos

Citation:

[2014] ACTSC 341

Hearing Date(s):

24 November 2014

DecisionDate:

18 December 2014

Before:

Mossop M

Decision:

See [47]

Category:

Principal Judgment

Catchwords:

CONTRACT – contractual interpretation – when loans repayable upon termination of lease “if an option is not exercised” ‑ whether option exercised in accordance with the contract – rectification – whether contract fails to give expression to the true intention of the parties

Cases Cited:

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Scald Pty Ltd v Turner Developments Proprietary Ltd [2014] ACTSC 72

Parties:

Annee Pty Limited (Plaintiff)

Dimitri Eliopoulos (Defendant)

Representation:

Counsel:

Mr R J Arthur (Plaintiff)

Mr D Robens (Defendant)

Solicitors:

Bradley Allen Love (Plaintiff)

Kamy Saeedi Law (Defendant)

File Number(s):

SC 343 of 2013

Introduction

1. These proceedings involve a claim by the plaintiff against the defendant arising out of three loans totalling $380,000 made by the plaintiff to the defendant in September 2009, June 2010 and April 2011.  The issue between the parties is whether or not those loans have become repayable.  That depends upon the terms of a written agreement between the parties.  The plaintiff contends that the loans became repayable on 30 September 2012.  The defendant contends that under the agreement the loans did not become repayable on that date.  In the alternative, the defendant seeks an order rectifying the agreement with the effect that the loans would not have become repayable on that date.

Background

1. The sole director of the plaintiff is Nicholas Carter.  He is a chef by trade.  The defendant is Mr Carter’s wife’s cousin.  Mr Carter has known the defendant for 16 to 18 years.  In 2008 the defendant approached Mr Carter with a business proposal.  The proposal was to open a restaurant and bar and for Mr Carter to run the kitchen. Mr Carter ultimately agreed and the restaurant and bar, trading under the name “The Kennedy Room”, opened on 25 September 2009.  Prior to that date Mr Carter had been involved with the design and fit out of the kitchen in the premises while the defendant was responsible for the other aspects of the set up of the business. 

1. Mr Carter had been given a copy of the lease that existed over the premises by the defendant (“2007 Lease”) prior to entering into the agreement with the defendant.  The defendant told him that the lease ran to 2012 and after that there was an option for a lease until 2017.  The company which the defendant controlled, Clubeli Pty Ltd, had taken an assignment of the 2007 Lease over the premises with the consent of the landlord. 

1. Two separate agreements were negotiated between the plaintiff, the defendant and Clubeli Pty Ltd (“Clubeli”).  They were both dated 15 April 2010.  One was entitled “Service Agreement” and related to the terms on which Mr Carter would provide his services as an executive chef.  He did that…