JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	11–15, 18–19, 22, 28 November 2013
DATE OF JUDGMENT:	17 December 2013
CASE MAY BE CITED AS:	Braude v Kaye
MEDIUM NEUTRAL CITATION:	[2013] VSC 705	First Revision: 20 December 2013

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CONTRACT — Alleged oral loan agreement — Disputed advances by plaintiff to defendant — Alleged oral consulting agreement for the provision of services by defendant to plaintiff — Parties entered into an agreement which was neither the alleged loan agreement nor the alleged consulting agreement and fully performed it — Deed of Acknowledgment and Set-Off of Debt — Whether deed void for uncertainty — Whether deed liable to be set aside due to misleading conduct — Deed held to be effective according to its terms — Plaintiff’s claim and defendant’s counterclaim dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Stirling with Ms A Folie	Stamford Lawyers
For the Defendant	Mr G Golvan QC with Ms A Haban-Beer	Lewenberg & Lewenberg

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Facts which are not in dispute......................................................................................................... 3

The parties’ backgrounds and relationship.............................................................................. 3

The 140 items in the Schedule..................................................................................................... 4

Other business dealings of the parties...................................................................................... 6

Other matters not in dispute..................................................................................................... 10

Credibility of witnesses and Jones v Dunkel submission......................................................... 10

Did the parties enter into the Alleged Agreements?.................................................................. 14

Disputed evidence...................................................................................................................... 14

Conclusion: The parties entered into the 2004 Agreement................................................... 16

Payments made by the plaintiff under the 2004 Agreement.................................................... 25

Findings concerning spreadsheet............................................................................................. 25

Findings concerning missing emails........................................................................................ 29

Findings concerning missing cheque butts............................................................................. 31

Findings on the Disputed Payments........................................................................................ 31

Item 5: Payment of $30,000 to Mr Brdjanin....................................................................... 31
Items 10, 29, 33, 37, 65, 86, 95, 120, 130, 131 and 142: Travel, accommodation and meals 32
Items 12, 42, 55 and 69: Payments to Mr Kheir................................................................. 33
Items 16 and 138: Payments to Barry Taylor..................................................................... 34
Items 17 and 104: Payments to Mr Janover....................................................................... 35
Item 19: Payment of $4,500 to Mr Adno............................................................................. 37
Items 21, 36, 39, 44, 49 and 96: Payments for ASIC fees................................................... 38
Items 24, 25, 27 and 28: Payments to Mr Gee.................................................................... 38
Items 26, 34, 35, 48, 51, 62, 64, 66, 105, 127, 129 and 137: Cash payments to the defendant 39
Items 76, 126 and 132: Payments to ‘Olia’ and her husband.......................................... 40
Item 78: Payment of $400 for medications......................................................................... 41
Items 79, 88, 89, 91, 99, 101, 119 and 121: Miscellaneous personal expenses............... 42
Item 81: Payment of $766 for tax......................................................................................... 42
Item 94: Payment of $300 to ‘Tony’..................................................................................... 43
Item 103: Payment of $4,000 to the defendant.................................................................. 43
Item 109: Payment of $10,463 ‘for 21^st century acc, strawberrynet’................................ 44
Item 112: Payment of $2,000 to Mr Skien........................................................................... 45
Item 114: Payment of $5,000 to Mr Porritt......................................................................... 45
Item 116: Payment of $8,050 to ‘Milkbar’........................................................................... 46
Item 117: Payment of…

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 Braude v Kaye

Details

AGLC: Braude v Kaye [2013] VSC 705
Case: [2013] VSC 705
Decision Date: 17 December 2013

CaseChat Overview and Summary

The case of Braude v Kaye involved a dispute between the plaintiff, Braude, and the defendant, Kaye. The plaintiff alleged that an oral loan agreement and an oral consulting agreement existed between the parties. Braude claimed that he had made advances to Kaye under the alleged loan agreement and that Kaye had provided consulting services to Braude under the alleged consulting agreement. Kaye, on the other hand, denied the existence of the alleged loan agreement and consulting agreement. Instead, the parties had entered into a different agreement which they fully performed. This agreement was formalised in a Deed of Acknowledgment and Set-Off of Debt. The dispute centred around the validity of this deed, with Braude contending that it was void for uncertainty and that it may have been set aside due to misleading conduct. The court had to determine the validity of the deed and its enforceability.

The legal issues in the case revolved around the enforceability of the Deed of Acknowledgment and Set-Off of Debt. Braude argued that the deed was void for uncertainty because it did not clearly define the terms of the agreement between the parties. Additionally, Braude contended that the deed was liable to be set aside due to misleading conduct by Kaye. The court had to assess whether the deed was sufficiently clear to be enforceable and whether there was any misleading conduct that would render the deed invalid. The court also had to consider whether the deed represented the true agreement between the parties.

The court found that the Deed of Acknowledgment and Set-Off of Debt was effective according to its terms. It held that the deed was not void for uncertainty as it contained sufficient clarity to be understood by reasonable persons. The court also determined that there was no misleading conduct by Kaye that would warrant setting aside the deed. The court concluded that the deed accurately reflected the agreement between the parties and that it was enforceable. Consequently, the plaintiff's claim and the defendant's counterclaim were dismissed.

As a result of the court's decision, the plaintiff's claim and the defendant's counterclaim were dismissed. The court held that the Deed of Acknowledgment and Set-Off of Debt was valid and enforceable, and that it accurately represented the agreement between the parties. The court found that there was no basis to set aside the deed due to uncertainty or misleading conduct. Therefore, the parties were bound by the terms of the deed, and the dispute was resolved in favour of the defendant.

Orders