Dimitrious Katsaounis v Peter Belehris and Coula Belehris No. SCGRG 93/785, 90/2535 Judgment No. 4884 Number of Pages 21 Mortgages

Dimitrious Katsaounis, the plaintiff, sued Peter and Coula Belehris, the defendants, in the Supreme Court of South Australia over a loan of $93,000 that the plaintiff had made to the defendants. The plaintiff's case was based on the loan agreement and a mortgage that was executed on 10 April 1987. The defendants denied liability and counterclaimed. The plaintiff sought recovery of the principal sum, interest, and costs. The defendants counterclaimed for a declaration that the mortgage was void or alternatively should be rectified. The plaintiff also sought to appropriate monies paid by the defendants to repay other debts, as well as to recover costs on a common fund basis. The defendants argued that the mortgage was void, that the plaintiff was not entitled to recover costs on a common fund basis, and that the plaintiff had appropriated monies without entitlement. The defendants also argued that the mortgage was void for uncertainty. The court considered the terms of the mortgage, the evidence, and the law on appropriation and recovery of costs. The court found that the mortgage was valid and enforceable, that the plaintiff was entitled to appropriate monies to repay other debts, and that the plaintiff was entitled to recover costs on a common fund basis. The court ordered that the mortgagee was entitled to appropriate monies paid by the mortgagor to repay unsecured debts or liabilities contracted before the mortgage, and that the mortgagee was entitled to recover all costs charges and expenses reasonably incurred or paid in connection with the mortgage. The court also ordered that a chartered accountant be appointed to calculate the amount due to the plaintiff.