Corea v HYPERCENTRE Pty Ltd
[2006] WADC 205
•24 November 2006 typed from tape and edited by Trial Judge
COREA -v- HYPERCENTRE PTY LTD & ORS [2006] WADC 205
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 205 | |
| Case No: | CIV:1548/2004 | 21 NOVEMBER 2006 | |
| Coram: | FENBURY DCJ | 24/11/06 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff | ||
| PDF Version |
| Parties: | ANTONIO COREA HYPERCENTRE PTY LTD ADAM KEANE CIAN McGEE BRAD BRAZIER SLADE NORRIS MATTHEW GIOVINAZZO NICOLE-MAREE REBELLO |
Catchwords: | Action for monies had and received Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
HYPERCENTRE PTY LTD
First Defendant
ADAM KEANE
Second Defendant
CIAN McGEE
First Third Defendant
BRAD BRAZIER
Second Third Defendant
SLADE NORRIS
Third Third Defendant
MATTHEW GIOVINAZZO
Fourth Third Defendant
- NICOLE-MAREE REBELLO
Fifth Third Defendant
Catchwords:
Action for monies had and received - Turns on own facts
Legislation:
Nil
Result:
Judgment for plaintiff
Representation:
Counsel:
Plaintiff : Mr R J Nash
First Defendant : No appearance
Second Defendant : In person
First Third Defendant : In person
Second Third Defendant : Mr H Sklarz
Third Third Defendant : Mr H Sklarz
Fourth Third Defendant : Mr H Sklarz
Fifth Third Defendant : Mr H Sklarz
Solicitors:
Plaintiff : GG Legal
First Defendant : Not applicable
Second Defendant : Not applicable
First Third Defendant : Not applicable
Second Third Defendant : Henry Sklarz
Third Third Defendant : Henry Sklarz
Fourth Third Defendant : Henry Sklarz
Fifth Third Defendant : Henry Sklarz
(Page 3)
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 FENBURY DCJ: This action was listed for a trial that took place in this Court on 21 November 2006. The plaintiff appeared and was represented by counsel Mr Nash. There was no appearance of or on behalf of the first defendant, nor the second defendant. The first-named third defendant appeared in person. The second, third, fourth and fifth-named third defendants appeared by counsel Mr Sklarz.
2 After some negotiations on the morning of the hearing, the plaintiff's claim against the five third defendants was adjourned sine die on the basis that settlement terms had been reached and time for effect to be given to those terms was required. A number of orders were made in respect of that.
3 The hearing proceeded with respect to the first and second defendants only, despite their non-appearance. This took place pursuant to O 34, r 2 of the Supreme Court Rules.
4 Counsel opened the case and later produced a helpful written submission. A bundle of relevant documents was tendered. The plaintiff gave evidence on oath.
5 Relying upon these materials and the plaintiff's sworn testimony, the following seems to me to be established:
6 The plaintiff was a person of some substance who had a keen interest in music. He met the defendant who had involvement with a rock band known as Hypercentre which, it was contemplated, was soon to tour the United States of America.
7 The purpose of that tour, as it was described, was to "showcase" or promote the band's talents in the hope of attracting work and perhaps an offer of a recording contract. Initially, the tour was to be for one week.
8 The plaintiff agreed to lend money to the band for the tour. As matters developed, the plaintiff's involvement became greater. He was in due course to be the manager. A company was also incorporated in respect of which shares were allocated to the plaintiff and members of the band and the second defendant.
9 By 7 April 2003 the plaintiff had advanced some $50,982.10 to the enterprise. Following the initial negotiations about a showcase tour, costs increased substantially and the plaintiff required the parties to formalise what had occurred in written contracts, including guarantees for repayment.
(Page 5)
10 A loan agreement dated 7 April 2003, which is exhibit 1.1, was entered into. By that loan agreement the second defendant guaranteed repayment of debts referred to and the third defendants guaranteed repayment of other specified and identified moneys. There was a repayment date defined.
11 A memorandum of agreement between the parties was also signed on 7 April 2003. This document emphasised that it was the intent of the parties that the payments by the plaintiff were a loan guaranteed by the band and its members.
12 Following a further meeting on 6 July 2003, on 16 July 2003 a loan variation document was executed by the parties to rectify an oversight concerning provision for an obligation to repay the loans to the plaintiff even if no recording contract was forthcoming to the band.
13 It was submitted, and I find, that the intention of the loan variation was to make the debt repayable if no recording agreement was entered into within 90 days of the end of the United States tour.
14 The tour was much longer than initially planned, lasting over a month and ending on 29 August 2003. The evidence was, and I find, that no recording agreement or contract was entered into within the 90 day period of the end of the tour.
15 It was common ground on the pleadings that by notice dated of 16 January 2004 the plaintiff demanded repayment of the debt. It is common ground that no repayment was made. As counsel put it in par 32 of the submissions:
"Clause 13 of the loan agreement sets out the obligations of the first guarantor (second defendant). By clause 13.2 the obligations extend to indemnifying the plaintiff 'against all loss and damage costs and expenses suffered or incurred by the plaintiff by reason of any breach or non-performance by the borrower of the terms and conditions of the agreement.'
Further, clause 13.3 provides that the second defendant agrees that once the debt becomes due and payable by the borrower who is in fact the first defendant then the first guarantor shall pay the same to the plaintiff whether or not demand has been made."
(Page 6)
16 In my view, the plaintiff should have the judgment that it seeks. Counsel prepared some helpful calculations for which I was grateful and they include interest calculated as of today's date. The calculations are set out in what is called a claim summary. It is consistent with the materials that have been provided and I will read them into these reasons.
17 Primarily the debt is comprised of three sums. The first sum is the sum acknowledged in the loan agreement. (Item (a) in the schedule of the loan agreement exhibit 1.1) and that sum is $37,829.16.
18 The second item is a sum acknowledged in the loan agreement for conduct of the US tour, (item (b) in the schedule of the loan agreement exhibit 1.1), which is $13,152.85.
19 The third item involves further sums advanced for the purposes of the US tour on and from the 7 April 2003 which is verified by transfer vouchers which are set out in exhibit 1.7. That item is $82,151.29 which results in a total debt of $133,133.30.
20 Interest on that debt is said to be calculated on the basis that demand was made on 16 January 2004 by way of a 14-day notice which expired on 30 January. Thus it is from 30 January that interest can properly and fairly be calculated. The rate of interest should be the Supreme Court rate of 6 per cent and thus 31 January 2004 to 24 November 2006 is 1024 days which on the sum I have just mentioned results in interest of $22,410.16.
21 Thus the total claim against the second defendant is $155,543.46.
22 I return to the proposed settlement that I mentioned at the commencement of these reasons relating to the five third defendants. The effect of that settlement is that terms were agreed that amount to a repayment, for the purposes of these remarks, in the amount of $100,000.
23 This sum should be deducted from the judgment sum and accordingly therefore I give judgment for the plaintiff against the first defendant and the second defendant in the sum of $55,543.46.
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