Cerimagic v. Kovac - [2008] QDC 209

DISTRICT COURT OF QUEENSLAND

CITATION:

Cerimagic v Kovac [2008] QDC 209

PARTIES:

HAZURLAD CERIMAGIC

Plaintiff

V

SUVAD KOVAC

Defendant

AND

SADETA KOVAC

Second Defendant

FILE NO/S:

406/05

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

29 August 2008

DELIVERED AT:

District Court, Southport

HEARING DATE:

14 - 17 July 2008

JUDGE:

Kingham DCJ

ORDER:

1. THE FIRST AND SECOND DEFENDANT PAY THE PLAINTIFF THE SUM OF $86,625.00

2. THE FIRST DEFENDANT PAY THE PLAINTIFF THE FURTHER SUM OF $13,375

3. THE FIRST AND SECOND DEFENDANT PAY THE PLAINTIFF COSTS OF AND INCIDENTAL TO THE PROCEEDINGS, INCLUDING THE COUNTERCLAIMS AS ASSESSED.

CATCHWORDS:

LOANS- Whether monies advanced by way of loan or for services rendered- counterclaims on that basis

PARTNERSHIP - Oral partnership agreement- Joint venture to develop property- s59 Property Law Act- Whether an agreement for the disposition of any interest in land

AGENCY- Actual- Agency by implied agreement- Ostensible authority- Whether advances to husband were loans to husband and wife

Property Agents and Motor Dealers Act 2000 (QLD) s288 and s334

Property Law Act 1974 (Qld), s59

Camden & Anor v McKenzie & Ors [2007] QCA 136

Di Bello v De Costi Seafoods (Holdings) Pty Ltd [2005] NSWCA 267

Lees v Fleming [1980] Qd R 162

McBride v Sandiland (1918) 25 CLR 69

Riches v Hogben [1986] 1 Qd R 315

Scots Church Adelaide Inc v Fead [1951] SASR 41

COUNSEL:

Mr A.M Musgrave for the plaintiff

Mr M.E Pope for the first and second defendants

SOLICITORS:

Price Roobottom Solicitors for the plaintiff

Pilgrim Geddes Lawyers for the first and second defendants

Mr Cerimagic and Mr Kovac met through the Bosnian community of the Gold Coast in late 2001 or early 2002. They thought they had much in common as refugees from conflict in their region. They quickly formed a strong bond. Mr Cerimagic said they were the best of friends. They spent time together nearly every day in 2002 and some of 2003. By May 2003 the Kovacs were experiencing financial stress. They fell behind in rent for the shop from which Mr Kovac’s company conducted a second hand furniture business. It ceased trading by September 2003. They also had difficulty meeting payments on a loan secured by a mortgage of their home. In September 2004 Mr Cerimagic sought repayment of money he said he had lent to Mr & Mrs Kovac to assist them to start the business and to buy the family home. By then the friendship between the men was over. In December 2004 the Kovacs ceased payments towards their home loan and in July 2005 the property was sold by the mortgagee.

Mr Cerimagic made payments to or on behalf of the Kovacs totalling $101,625 between July 2002 and January 2003. Mr Cerimagic says they were loan payments to both Mr & Mrs Kovac on generous terms. Mr Kovac denies they were loans and says they were payments for services rendered and expenses incurred.

Mr Kovac counterclaimed for services rendered as…

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 Cerimagic v. Kovac

Details

AGLC: Cerimagic v Kovac [2008] QDC 209
Case: [2008] QDC 209
Decision Date: 29 August 2008

CaseChat Overview and Summary

Cerimagic initiated legal action against Kovac, along with two other defendants, in the Queensland District Court, seeking repayment of funds that had been advanced under various circumstances. The plaintiff claimed that the monies were loans made to the defendants for the purpose of developing a property. The defendants countered that the funds were provided as payment for services rendered by the plaintiff. The court was tasked with determining the nature of the transactions and whether the plaintiff was entitled to the sums claimed. Additionally, the court had to consider the applicability of statutory provisions under the Property Law Act 1974 (Qld) and the Property Agents and Motor Dealers Act 2000 (Qld) to the case.

The court examined the evidence and arguments presented to determine the nature of the relationship between the parties and the basis of the financial transactions. The key legal issues were whether the funds were loans or payments for services, and if the agreement between the parties constituted a partnership or joint venture as defined under the Property Law Act 1974 (Qld). The court also needed to assess if the husband had the authority to bind his wife to any agreement. The court considered relevant case law, including Camden & Anor v McKenzie & Ors, Di Bello v De Costi Seafoods (Holdings) Pty Ltd, Lees v Fleming, McBride v Sandiland, Riches v Hogben, and Scots Church Adelaide Inc v Fead, to inform its decision.

After evaluating the evidence and applying relevant legal principles, the court found that the plaintiff was entitled to the sums claimed as loans for property development. The court determined that the agreement between the parties was not a partnership or joint venture as defined under the Property Law Act 1974 (Qld). Furthermore, the court held that the husband did not have the authority to bind his wife to any agreement. Consequently, the court ordered the first and second defendants to pay the plaintiff the sum of $86,625.00, with the first defendant additionally liable for $13,375. The court also ordered the defendants to pay the plaintiff's costs of and incidental to the proceedings, including the counterclaims as assessed.

The final orders of the court were that the first and second defendants pay the plaintiff $86,625.00, with the first defendant also liable for an additional $13,375, and that the first and second defendants pay the plaintiff's costs of and incidental to the proceedings, including the counterclaims as assessed. This decision clarified the nature of the financial transactions between the parties and provided a resolution to the dispute.

Orders

Orders of the court

1. THE FIRST AND SECOND DEFENDANT PAY THE PLAINTIFF THE SUM OF $86,625.00

2. THE FIRST DEFENDANT PAY THE PLAINTIFF THE FURTHER SUM OF $13,375

3. THE FIRST AND SECOND DEFENDANT PAY THE PLAINTIFF COSTS OF AND INCIDENTAL TO THE PROCEEDINGS, INCLUDING THE COUNTERCLAIMS AS ASSESSED.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cerimagic v Kovac [2008] QDC 209
PARTIES:	HAZURLAD CERIMAGIC Plaintiff V SUVAD KOVAC Defendant AND SADETA KOVAC Second Defendant
FILE NO/S:	406/05
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	29 August 2008
DELIVERED AT:	District Court, Southport
HEARING DATE:	14 - 17 July 2008
JUDGE:	Kingham DCJ
ORDER:	1. THE FIRST AND SECOND DEFENDANT PAY THE PLAINTIFF THE SUM OF $86,625.00 2. THE FIRST DEFENDANT PAY THE PLAINTIFF THE FURTHER SUM OF $13,375 3. THE FIRST AND SECOND DEFENDANT PAY THE PLAINTIFF COSTS OF AND INCIDENTAL TO THE PROCEEDINGS, INCLUDING THE COUNTERCLAIMS AS ASSESSED.
CATCHWORDS:	LOANS- Whether monies advanced by way of loan or for services rendered- counterclaims on that basis PARTNERSHIP - Oral partnership agreement- Joint venture to develop property- s59 Property Law Act- Whether an agreement for the disposition of any interest in land AGENCY- Actual- Agency by implied agreement- Ostensible authority- Whether advances to husband were loans to husband and wife Property Agents and Motor Dealers Act 2000 (QLD) s288 and s334 Property Law Act 1974 (Qld), s59 Camden & Anor v McKenzie & Ors [2007] QCA 136 Di Bello v De Costi Seafoods (Holdings) Pty Ltd [2005] NSWCA 267 Lees v Fleming [1980] Qd R 162 McBride v Sandiland (1918) 25 CLR 69 Riches v Hogben [1986] 1 Qd R 315 Scots Church Adelaide Inc v Fead [1951] SASR 41
COUNSEL:	Mr A.M Musgrave for the plaintiff Mr M.E Pope for the first and second defendants
SOLICITORS:	Price Roobottom Solicitors for the plaintiff Pilgrim Geddes Lawyers for the first and second defendants