BETWEEN: COLIN JOHN BARBOUTIS
Plaintiff
AND
LUCIO MACCHIA
First-named Defendant
GOLD HENGE ENTERPRISES PTY LTD (ACN 053 255664)
Second-named Defendant

Catchwords:

Contact - Loan agreement - Non est factum - Misleading and deceptive conduct by silence - Unconscionable conduct - Statutory limitation - Laches

Legislation:

Nil

Result:

Plaintiff's claim succeeds in the amount of $141,474 plus interest

Representation:

Counsel:

Plaintiff:     Mr A Metaxas
First-named Defendant     :     In person
Second-named Defendant     :     No appearance

Solicitors:

Plaintiff:     Metaxas & Hager
First-named Defendant     :     Not applicable
Second-named Defendant     :     Not applicable

Case(s) referred to in judgment(s):

Atwell v Roberts [No 3] [2009] WASC 96
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Blomley v Ryan (1956) 99 CLR 362
Commissioner of State Taxation (WA) v Pollock (1993) 11 WAR 64
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546
Hipworth v Mahar (1952) 87 CLR 335
Junker v Hepburn [2010] NSWSC 88
NRMA Ltd v Morgan (1999) 31 ACSR 435
Orr v Ford (1989) 167 CLR 316
Parker v South-Eastern Railway Co (1877) 2 CPD 416
Petelin v Cullen (1975) 132 CLR 355
The Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129
Wintertons Construction Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97
Young v Queensland Trustees Ltd (1956) 99 CLR 560

SCHOOMBEE DCJ: Mr Barboutis, the plaintiff, claims payment of $141,474.00 pursuant to a loan agreement entered into by Mr Lucio Macchia, the first-named defendant, and Gold Henge Enterprises Pty Ltd, the second‑named defendant on 3 November 1996. Gold Henge Enterprises Pty Ltd was not represented at the hearing of this matter. Mr Lucio Macchia represented himself.
Mr Macchia raised the defence of non est factum on the basis that the principal sum of $55,000 under the loan agreement was not paid to him, but for the benefit of Gold Henge Enterprises Pty Ltd, and that he was of the understanding that he had only signed a guarantee for the repayment of the principal sum by Gold Henge Enterprises Pty Ltd.
Mr Macchia also alleged that there was misleading and deceptive conduct by Mr Barboutis which led to him signing the loan agreement and that Mr Barboutis acted unconscionably. Mr Macchia further submitted that until a demand was served on him on 2 October 2008, which was almost 12 years later, there was no indication that the loan would be enforced against him and Mr Barboutis unfairly allowed the interest to accumulate under the loan agreement. Mr Macchia relied on the doctrine of laches and raised the defence of statutory limitation. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barboutis v Macchia

Details

AGLC: Barboutis v Macchia [2010] WADC 115
Case: [2010] WADC 115
Decision Date: 6 AUGUST 2010

CaseChat Overview and Summary

The parties to the case, Barboutis and Macchia, were involved in a dispute concerning a loan agreement. The respondent, Barboutis, sought to have the agreement set aside on several grounds, including non est factum, misleading and deceptive conduct by silence, unconscionable conduct, and statutory limitation. The primary legal issues revolved around whether the respondent had been misled into signing the loan agreement and whether the agreement was unconscionable. Additionally, the court needed to determine if the respondent's claim was barred by the statute of limitations and the doctrine of laches.

The court examined the evidence presented by the respondent to determine whether there had been any misleading or deceptive conduct by the appellant, Macchia, in relation to the loan agreement. It found that while there had been some minor errors in the agreement, they did not amount to misleading and deceptive conduct. The court also considered whether the agreement was unconscionable, taking into account the circumstances surrounding the transaction and the relative bargaining positions of the parties. However, the court found that there was no evidence of unconscionable conduct on the part of the appellant. Regarding the statute of limitations, the court held that the respondent's claim was not barred as it was not brought within the relevant period. Finally, the doctrine of laches was also considered, but the court found that it did not apply in this case.

The court concluded that the respondent's claim to set aside the loan agreement was unsuccessful. The respondent had not demonstrated that he was misled into signing the agreement, nor had he shown that the agreement was unconscionable. The court further found that the respondent's claim was not barred by the statute of limitations or the doctrine of laches. Consequently, the respondent's application to set aside the loan agreement was dismissed.

Orders