Barboutis v Macchia

Case [2010] WADC 115


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BARBOUTIS -v- MACCHIA & ANOR [2010] WADC 115

CORAM:   SCHOOMBEE DCJ

HEARD:   12 - 14 MAY 2010

DELIVERED          :   6 AUGUST 2010

FILE NO/S:   CIV 2492 of 2008

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

  1. 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. 

  2. 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. 

  3. 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…

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Details
AGLC
Barboutis v Macchia [2010] WADC 115
Case
[2010] WADC 115
Decision Date

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

Orders of the court

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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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