Arime Pty Ltd v Isaacs

[2007] VSC 400

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 6985 of 2005

ARIME PTY LTD (ACN 088 313 044)	Plaintiff
v
JOHN ISAACS	Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 OCTOBER 2007
DATE OF JUDGMENT:	9 OCTOBER 2007
CASE MAY BE CITED AS:	ARIME PTY LTD v ISAACS
MEDIUM NEUTRAL CITATION:	[2007] VSC 400

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DEBT – Loan by plaintiff to defendant – Default – No appearance by defendant at trial.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. D. Bloch	Rockman & Rockman
For the Defendant	No appearance

HIS HONOUR:

1. In this proceeding the plaintiff, Arime Pty Ltd, claims against the defendant, John Isaacs, that it, in September 2000, lent Mr Isaacs the sum of $188,733.  The agreement was at that point oral.  Interest was to be paid at 10 per cent per annum for a period of three months, at which point the principal and interest were to be repaid.

1. By its amended statement of claim dated 6 December 2005, the plaintiff pleads the oral agreement and, by paragraph 3, pleads that the relevant sum, that is the sum of $188,733, was advanced to the defendant in September 2000.  It was paid in two amounts.  $38,733 was paid on 18 September 2000, and the balance of $150,000 was paid on 27 December 2000.

1. The amended statement of claim pleads a number of variations of the agreement.  The first of these reduced the interest rate from 10 per cent to 9 per cent and extended the date for repayment to January 2002.  Certain other variations dealing with the date of repayment are then pleaded.

1. Then by paragraph 6 of the amended statement of claim it is pleaded that in or about May 2004 the agreement was further varied by converting it from a loan repayable on demand, as it had become pursuant to an earlier variation, to a fixed term loan repayable on 31 May 2005.  That variation is evidenced, so the amended statement of claim pleads, by a written document executed by Arime through Mr Fadil Sadikay and by the defendant in person.

1. The document has been tendered and is exhibit P1.  Mr Sadikay, in his oral evidence in chief, swore to the fact that he executed the document on behalf of the plaintiff and that the defendant signed it in his presence.  The document provides that the plaintiff, as lender, lent to the defendant, as borrower, the sum to which I have already referred, that is $188,733.

1. The two individual payments are set out in clause 1 of the document and by clause 2 it is recorded that the defendant shall pay the plaintiff interest at the rate of 9 per cent per annum from the date of the several individual advances.  By clause 3 the agreement provides that the principal, together with accrued interest, is to be repayable in full on 31 May 2005.

1. By his defence to the amended statement of claim, the defendant, in paragraph 2.2(b), admits that in September 2000 the defendant borrowed the sum specified, that is $188,733.  By subparagraph (c) of paragraph 2.2 the defence further admits that the loan would attract interest at the rate of 9 per cent per annum.

1. By paragraph 8.1 of the defence, the defendant admits that he has repaid neither the principal nor interest.  His defence as pleaded is that the due date for payment has not yet arrived. 

1. The defendant has not appeared at the trial of this proceeding.  He was, in the usual way, called outside court and no appearance was noted.

1. The plaintiff then proceeded to call Mr Sadikay and through its counsel, Mr Bloch, informed me from the Bar table that the penalty rates of interest claimed by the plaintiff since the issue of the proceedings accorded with the relevant statutory provisions and that the amount claimed in the writ itself, being the principal plus interest to 31 May 2005, amounted to $268,676.27.  Interest including penalty interest on that amount is claimed in the sum of $72,292.32, being calculated first at the rate of 9 per cent from 1 June 2005 to 4 July 2005 in an amount of $2,252.46, and then from 5 July 2005 to 9 October 2007 at the statutory penalty rates which are applicable.  The interest thus accruing amounts to $70,039.86, coming to the total to which I referred of $72,292.32.

1. In my opinion the plaintiff is entitled to judgment for the amount claimed in the amended statement of claim, that is, the sum of $268,676.27, together with the additional interest to which I have referred in the sum of $72,292.32..  There will be judgment for the plaintiff accordingly, with costs, including reserved costs.

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