Azzi v Phillips

Case [2016] NSWDC 40

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Azzi v Phillips [2016] NSWDC 40
Hearing dates:23-25 February and 23-24 March 2016; written submissions to 1 April 2016
Date of orders: 05 April 2016
Decision date: 05 April 2016
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Judgment for the plaintiffs.
(2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of the claims for each plaintiff and interest thereon.
(3) Judgment for the cross-defendants against the cross-claimant on the cross-claim.
(4) Defendant/cross-claimant pay plaintiffs/cross-defendants’ costs.
(5) Liberty to restore in relation to interest and costs.
(6) Exhibits retained for 28 days.

Catchwords: CONTRACT – loan agreements – written loan agreements entered into after payments made – whether monies paid are loans or payments for services rendered by the defendant – defendant asserts written contracts are void for lack of consideration – defendant cross-claims for breach of contract, accounts stated, estoppel by representation, quantum meruit and misleading and deceptive conduct – fact-finding and issues of credit
Legislation Cited: Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Sch 2), s 4
Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW)
Property, Stock and Business Agents Act 2003 (NSW), s 55
Cases Cited: Aneve Pty Ltd v Bank of Western Australia Ltd [2005] NSWCA 441
Ballard v Multiplex Limited [2012] NSWSC 426
BBB Constructions Pty Ltd v Aldi Foods Pty Ltd [2010] NSWSC 1352
Browne v Dunn (1893) 6 R 67
Channel Seven Sydney Pty Ltd v Mahommed (2007) 278 ALR 335
Citigroup Pty Ltd v CrediProtect Pty Ltd [2010] NSWSC 1054
Dunwoodie v Teachers Mutual Bank Ltd (formerly NSW Teachers Credit Union Ltd) [2014] NSWCA 24
Falke v Scottish Imperial Assurance Co (1886) 34 Ch D 234
Harbour Port Consulting Pty Ltd v NSW Maritime [2011] NSWSC 813
HM&O Investments Pty Ltd v Ingram [2012] NSWSC 958
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1
Jones v Dunkel (1959) 101 CLR 298
Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635
McGlen-McLeod v Galloway [2012] NSWCA 368
McLean Tecnic Pty Ltd v Digi-Tech (Australia) Ltd [2005] NSWSC 386
Moukhayber v Camden Timber and Hardware Co Pty Ltd [2002] NSWCA 58
Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 All E R 470
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Philips v Tower Australia Ltd [2007] NSWSC 946
Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 165
Vasco Investment Managers Limited v Morgan Stanley Australia Limited [2014] VSC 530
Walton Construction Pty Ltd v Illawarra Hotel Company Pty Ltd (2012) 28 BCL 202
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Watson v Foxman…

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AGLC
Azzi v Phillips [2016] NSWDC 40
Case
[2016] NSWDC 40
Decision Date

CaseChat Overview and Summary

The plaintiffs in Azzi v Phillips sought to recover monies they claimed were loans made to the defendant. The defendant argued that the payments were made in consideration for services rendered and that any written agreements made subsequent to the payments were void for lack of consideration. The defendant also brought a cross-claim for breach of contract, accounts stated, estoppel by representation, quantum meruit and misleading and deceptive conduct.

The court was required to determine whether the monies paid were loans or payments for services. If the former, the plaintiffs were entitled to recover the amounts paid plus interest. If the latter, the plaintiffs were not entitled to recover any amount and the defendant’s cross-claim should be upheld. The court also needed to consider the validity of the written agreements and the merits of the defendant’s cross-claim.

The court found that the plaintiffs had established their case on the balance of probabilities. The court accepted the evidence of the plaintiffs and their witnesses and rejected the evidence of the defendant. The court found that the payments were indeed loans and that the written agreements were valid and binding. The court dismissed the defendant’s cross-claim in its entirety. The court held that the plaintiffs were entitled to recover the amounts paid plus interest and that the defendant was liable for the plaintiffs’ costs.

The court made judgment for the plaintiffs and against the defendant on the main claim. The court also made judgment for the defendant on the cross-claim. The court ordered that the defendant pay the plaintiffs’ costs and that interest and costs be assessed. The court retained the exhibits for 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiffs.

(2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of the claims for each plaintiff and interest thereon.

(3) Judgment for the cross-defendants against the cross-claimant on the cross-claim.

(4) Defendant/cross-claimant pay plaintiffs/cross-defendants’ costs.

(5) Liberty to restore in relation to interest and costs.

(6) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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