Erceg v Volonakis - [2020] NSWCA 253

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Erceg v Volonakis [2020] NSWCA 253
Hearing dates: 28 August 2020
Date of orders: 15 October 2020
Decision date: 15 October 2020
Before: Bell P at [1];
Gleeson JA at [2];
Payne JA at [14].
Decision:
(1) Appeal dismissed with costs;
(2) Cross-appeal dismissed with costs.

Catchwords:
CIVIL PROCEDURE – debt recovery – loans – dispute arising over two undocumented loans between friends – whether primary judge erred in finding that the appellant authorised the appellant’s now-estranged husband to jointly borrow from respondents
JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – whether primary judge erred in finding that the appellant not liable to pay interest on loan at rate of 48% per annum

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Evidence Act 1995 (NSW), s 81
Supreme Court Act 1935 (SA), 30C

Cases Cited:
Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Bannatyne v MacIver [1906] 1 KB 103
Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142
City Bank of Sydney v McLaughlin (1909) 9 CLR 615; [1909] HCA 78
Clarke v Abou-Samra [2010] SASC 205
Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234
Hecimovic v Schembri (NSW Sup Ct, 28 June 1974, Holland J, unreported)
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27
O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82
Re Cleadon Trust Limited [1939] Ch 286
Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875
Volonakis v Erceg(No 2) [2020] NSWSC 371

Category: Principal judgment
Parties: Ivancica Erceg (Appellant)
Patricia Volonakis (First Respondent)
Michael Volonakis (Second Respondent)
Representation: Counsel:
J M Ireland (Appellant)
S A Lawrence with A R Jordan (Respondents)
Solicitors:
McGirr Lawyers (Appellant)
Korn MacDougall (Respondents)

File Number(s): 2020/147954
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 1875;
[2020] NSWSC 371

Date of Decision:

20 December 2019

Before:

Hallen J

File Number(s):

2017/387961

HEADNOTE

[This headnote is not to be read as part of the judgment]

In November 2015, Patricia Volonakis (the first respondent) and Michael Volonakis (the second respondent) lent an amount of $375,000 to Walter Erceg (the now-estranged husband of the appellant). There was no written loan agreement. Hallen J, the primary judge, found that this loan was jointly advanced to Ivancica Erceg (the appellant). The primary judge found that Ivancica knew about, and accepted, the borrowing of the $375,000 and had authorised Walter to borrow that sum on her behalf jointly with him. The primary judge found that the whole of the amount was used to fund part of the deposit for…

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 Erceg v Volonakis

Details

AGLC: Erceg v Volonakis [2020] NSWCA 253
Case: [2020] NSWCA 253
Decision Date: 15 October 2020

CaseChat Overview and Summary

The appeal concerned a dispute over two undocumented loans made by the respondents to the appellant and her now-estranged husband. The primary judge had found that the appellant had authorised her husband to jointly borrow the funds from the respondents. The appellant appealed this finding, and also challenged the primary judge's decision regarding the rate of pre-judgment interest.

The Court of Appeal was required to determine whether the primary judge erred in finding that the appellant had authorised her husband to borrow the loan funds on her behalf. Additionally, the Court had to consider whether the appellant was liable to pay interest on the loans at the rate of 48% per annum, as determined by the primary judge.

The Court of Appeal dismissed the appeal, finding no error in the primary judge's conclusion that the appellant had authorised her husband to borrow the funds. The Court also dismissed the cross-appeal concerning the rate of pre-judgment interest. The appeal and cross-appeal were dismissed with costs.

Orders

Orders of the court

(1) Appeal dismissed with costs;

(2) Cross-appeal dismissed with costs.

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.

Medium Neutral Citation:	Erceg v Volonakis [2020] NSWCA 253
Hearing dates:	28 August 2020
Date of orders:	15 October 2020
Decision date:	15 October 2020
Before:	Bell P at [1]; Gleeson JA at [2]; Payne JA at [14].
Decision:	(1) Appeal dismissed with costs; (2) Cross-appeal dismissed with costs.
Catchwords:	CIVIL PROCEDURE – debt recovery – loans – dispute arising over two undocumented loans between friends – whether primary judge erred in finding that the appellant authorised the appellant’s now-estranged husband to jointly borrow from respondents JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – whether primary judge erred in finding that the appellant not liable to pay interest on loan at rate of 48% per annum
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 100 Evidence Act 1995 (NSW), s 81 Supreme Court Act 1935 (SA), 30C
Cases Cited:	Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Bannatyne v MacIver [1906] 1 KB 103 Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 City Bank of Sydney v McLaughlin (1909) 9 CLR 615; [1909] HCA 78 Clarke v Abou-Samra [2010] SASC 205 Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234 Hecimovic v Schembri (NSW Sup Ct, 28 June 1974, Holland J, unreported) Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82 Re Cleadon Trust Limited [1939] Ch 286 Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875 Volonakis v Erceg(No 2) [2020] NSWSC 371
Category:	Principal judgment
Parties:	Ivancica Erceg (Appellant) Patricia Volonakis (First Respondent) Michael Volonakis (Second Respondent)
Representation:	Counsel: J M Ireland (Appellant) S A Lawrence with A R Jordan (Respondents) Solicitors: McGirr Lawyers (Appellant) Korn MacDougall (Respondents)
File Number(s):	2020/147954
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 1875; [2020] NSWSC 371 Date of Decision: 20 December 2019 Before: Hallen J File Number(s): 2017/387961