Courtville Holdings Pty Ltd v Theodoridis
[2013] NSWSC 864
•27 June 2013
Supreme Court
New South Wales
Medium Neutral Citation: Courtville Holdings Pty Ltd v Theodoridis & Anor [2013] NSWSC 864 Hearing dates: 27 June 2013 Decision date: 27 June 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Judgment for Plaintiffs
Catchwords: Ex parte hearing - no question of principle. Category: Principal judgment Parties: Courtville Holdings Pty Ltd (First Plaintiff)
Antarctic Corporation Pty Ltd (Second Plaintiff)
Steven Theodoridis (First Defendant)
Maiana Theodoridis (Second Defendant)Representation: Counsel:
P.J. Finch (Plaintiffs)
No appearance (First Defendant)
No appearance (Second Defendant)
Solicitors:
Lawson Plowes (Plaintiffs)
File Number(s): 2010/061326
ex tempore Judgment
By a statement of claim filed on 10 March 2010 the plaintiffs, Courtville Holdings Pty Ltd and Antarctic Corporation Pty Ltd, sought monetary judgments against the two defendants, Steven Theodoridis and Maiana Theodoridis, by reason of their failure to pay monies owing under a Deed of Loan (the "Deed").
At some point the defendants filed defences and cross claims. It is unnecessary to describe the terms of those pleadings, other than to note that they admitted execution of the Deed, and another deed that varied its terms, which I will describe. They also did not deny that they had failed to pay the amount which had been borrowed. Those pleadings were prepared with the assistance of their solicitor on the record. The affidavit verifying those defences identified the defendants as having a residential address in Petersham.
Subsequently, those solicitors and another solicitor retained on their behalf ceased to act. Nevertheless, the plaintiffs continued to pursue these proceedings. They endeavoured to contact the first and second defendants. In January of this year an investigator was retained to find them, as they were no longer residing at the address listed in their defences. He was eventually able to locate a business address for them in Prestons.
On 14 February 2013 the solicitor for the plaintiffs spoke with the first defendant. He confirmed that he would not be attending a directions hearing that day, but would appear on the next occasion and "get things over with". He declined to disclose a residential address, but stated that his business address was the correct place to contact him. In fact, neither the first nor second defendant appeared subsequently. Since that time the solicitor for the plaintiffs has corresponded with the first and second defendants by sending letters to the business address that he had obtained.
The matter was ultimately set down for final hearing today. On 30 April 2013 the plaintiffs' solicitor wrote to the first and second defendants at the business address that I have referred to, and advised them of the date for hearing. When the matter was called, their names were called outside the court three times, but they did not appear. In these circumstances I consider it appropriate that the hearing proceed.
The plaintiffs' claim is a simple one. It rests upon the non-repayment of the monies to which I have referred. In particular, the Deed of Loan was dated 27 October 2014. It identifies the plaintiffs as the lender, and two borrowers, the first defendant, Steve Theodoridis and a company called Fineglow Pty Limited. The Deed also lists the first and second defendants, that is Steve Theodoridis and Maiana Theodoridis, as the guarantors. The loan was for the sum of $3,157,171.43.
The Deed records the advancing of that sum to the borrowers, as defined. It includes an obligation imposed upon the borrowers to repay that principal sum by the payment of $125,000 within two business days of the date of the deed, $297,727.27 by no later than 14 December 2004, and the balance to be paid within three months of the date of the Deed which, in the events that have happened, was 27 December 2004.
Clause 5 provides that the interest on the balance outstanding was payable at the rate of 12% per annum, in accordance with the methodology set out in Clause 5.2. By Clause 8 the first and second defendants guaranteed the repayment of those amounts.
By Deed of Variation dated 23 December 2004, the interest rate was amended by the replacement of the figure of 14% or 12%, and the obligation to make the payment of $297,727.27 by no later than 14 December 2004 was deleted. In the end result, the payment obligation meant that, other than the payment of $125,000, the balance of the loan became due and owing on 27 December 2004, with interest accruing at the rate of 14%.
The evidence read at the hearing reveals that, other than the first payment of $125,000, no amount was paid. In those circumstances, I am satisfied that the plaintiffs have made out their case to recover against the first defendant, as both borrower and guarantor, and against the second defendant, as guarantor.
[Short adjournment.]
A revised schedule has been provided, using the rate of 14% as applicable under the Deed of Variation. The schedule confirms that the amount owing by the first and second defendants, comprising outstanding principal and interest, is $6,707,337.34.
There will be judgment for the plaintiffs against the first and second defendants for that amount. I also order the first and second defendants to pay the plaintiffs' costs of the proceedings.
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Decision last updated: 27 June 2013
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