Argyrou v Boutros

[2016] NSWDC 443

District Court

New South Wales

Medium Neutral Citation:	Argyrou v Boutros [2016] NSWDC 443
Hearing dates:	30 June 2016
Date of orders:	30 June 2016
Decision date:	30 June 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Note that the first defendant did not appear when the matter was called. (2)   Note that the second defendant is deregistered. (3) Note the Court proposes under r 29.7(3) of the Uniform Civil Procedure Rules 2005 to give judgment without proceeding to trial in respect of the liquidated claims of the plaintiffs. (4)   Judgment for the second plaintiff against the first defendant in the sum of $127,438.97 inclusive of court interest from 1 August 2011 to today. (5)   First defendant to pay the plaintiffs' costs.
Catchwords:	LIQUIDATED CLAIM – absent party – judgment without trial – deed – obligation to repay principal and interest – rate of interest
Legislation Cited:	Uniform Procedure Rules 2005, r 29.7
Category:	Principal judgment
Parties:	Chrisodoulou Argyrou - first plaintiff Theofanou Argyrou - second plaintiff Almaza Boutros aka Souzie Boutros - first defendant Option 1 Mortgage Pty Ltd - second defendant
Representation:	Counsel: Mr P Gledson - plaintiffs   Solicitors: Peter Baker Solicitor - plaintiffs
File Number(s):	2015/89611
Publication restriction:	None

Judgment

1. The second plaintiff, Mrs Theofanou Argyrou, was born in Cyprus in 1935. She received less than one year of schooling and needed the assistance of an interpreter to prepare her evidence in these proceedings.

2. Mrs Argyou owned a mortgaged property in Cordelia Crescent, Green Valley. On 29 July 2010 she agreed for her Green Valley property to also serve as second mortgage security for a loan to her and her son, Chrisodoulou Argyrou, the first plaintiff, in the sum of $75,000 repayable in six months. The first defendant, Almaza Boutros also known as Souzie Boutros, through her company, the second defendant, now deregistered, served as broker for that loan. The loan was not on favourable terms.

3. Approximately $3,000 of the loan was to pay council rates and land tax on the property and the lender withheld another approximately $6,000 to meet six months of repayments to the first mortgagee. There was no evidence as to whether those payments were made, but if so, those were the only amounts of the loan that benefited either plaintiff. An amount of $41,561, the residual amount of the loan after a variety of fees were paid, was to be advanced to Mr Argyrou but was deposited into an account owned jointly by Mr Argyrou and Ms Boutros and wholly withdrawn the next day by Ms Boutros.

4. There was evidence that Mr Argyrou knew nothing of the joint account, the deposit or the withdrawal at the time they occurred. About 12 months later in August 2011, the property was sold and the sum of $129,129.46 was paid to the second mortgagee and its lawyers. Shortly before that payout, Mrs Argyrou entered a deed with Ms Boutros. The terms of that deed are not without some uncertainty. They appear to impose an obligation on Ms Boutros to repay interest on $95,000 to Ms Argyrou monthly from 1 August 2011, and to repay the principal sum of $95,000 (leaving aside the possibility of other borrowings by Ms Boutros, which did not occur) on 31 July 2016. No payment of interest has been made. The deed provides that time is of the essence.

5. The statement of claim alleges breaches of the deed and purports to repudiate it, which I take to mean terminate it, and claim damages. The damages, in respect of the deed, are thus $95,000 plus interest.

6. There was no appearance for the first defendant when the matter was called and I propose to proceed under r 29.7(3) of the Uniform Procedure Rules 2005, which provides:

“(3)  If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of:

(a)  the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.”

The plaintiffs agreed to this course.

7. Parts of the affidavits, including annexures, have been read which provide the evidence of the existing debt. There are two remaining uncertainties: whether the $95,000 includes the $41,561 wrongly withdrawn by Ms Boutros and secondly, the applicable interest rate.

8. As to the first matter, the better view for the underlying "borrower's debt" in the deed is that it is partly comprised of the sum withdrawn by Ms Boutros. The plaintiffs accept that application of the deed. Thus, the two amounts, $41,561 and $95,000 owing, are not cumulative.

9. As to the second matter, interest, the clause in the deed dealing with interest is ambiguous and, in any event, there is an absence of evidence as to the facts enabling a rate proposed by the deed to be calculated. It is likely to exceed the court rate especially since it is a compounding rate. In the circumstances, including the absence of evidence, I propose to adopt the court rate.

10. Accordingly, Mrs Argyrou is entitled to $95,000 plus interest. The extent of that interest from 1 August 2011 to date is $32,438.91.

11. Accordingly, the orders of the Court are:

1. Note that the first defendant did not appear when the matter was called.

2. Note that the second defendant is deregistered.

3. Note the Court proposes under r 29.7(3) of the Uniform Civil Procedure Rules 2005 to give judgment without proceeding to trial in respect of the liquidated claims of the plaintiffs.

4. Judgment for the second plaintiff against the first defendant in the sum of $127,438.97 inclusive of court interest from 1 August 2011 to today.

5. First defendant to pay the plaintiffs' costs.

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Decision last updated: 01 April 2019