Haider v Gudelj

[2019] ACTSC 213

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Haider v Gudelj

Citation:

[2019] ACTSC 213

Hearing Date:

29 - 30 April 2019, 1 May 2019, 11 July 2019, 31 July 2019

DecisionDate:

13 August 2019

Before:

Elkaim J

Decision:

(1)     Judgment is given for the defendants against the plaintiffs.

(2)     The plaintiffs are to pay the defendants’ costs of the proceedings.

Catchwords:

BANK GUARANTEES – DEBT – ballot conducted for the purchase of blocks of land – plaintiff used names of defendants to acquire multiple blocks – purchase monies provided by NAB – failure to repay monies – principle of equitable contribution between guarantors

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 406, 407, 430

Cases Cited:

Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342

AMP Bank Ltd v Brown and Kavanagh [2017] NSWSC 313
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Burke v LFOT Pty Limited (2000) FCA 1155; 178 ALR 161
Burke v LFOT Pty Limited [2002] HCA 17; 209 CLR 282
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Finch v Underwood (1876) 2 Ch D 310
Mahoney v McManus (1981) 180 CLR 370
Mason v Demasi [2009] NSWCA 227
Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38  NSWLR 116

Sky Channel Pty Ltd v Tszyu (No 2) [2000] NSWSC 1150

Parties:

Tedo Iqtidar Haider (First Plaintiff)

Maria Haider (Second Plaintiff)

Vinko Gudelj (First Defendant)

Daniel Ivancic (Second Defendant)

Carlo Anthony Pasquariello (Third Defendant)

Merhdad Takalubegash (Fourth Defendant)

Rita Elizabeth Takalubegash (Fifth Defendant)

Representation:

Counsel

D Lloyd (First and Second Plaintiff)

P Greenwood with D Robens (First, Third, Fourth and Fifth Defendants)

No appearance (Second Defendant)

Solicitors

Colquhoun Murphy (First and Second Plaintiff)

Kamy Saeedi Law (First, Third, Fourth and Fifth Defendants)

No appearance (Second Defendant)

File Number:

SC 417 of 2013

ELKAIM J:

1. The two plaintiffs are a husband and wife. I will refer to them as Dr Haider and Mrs Haider. The defendants are a selection of friends and related persons.

1. The second defendant did not appear and was not represented. I was informed that a default judgment had been entered against him. The remainder of the defendants were represented by the same legal team. Unless otherwise stated, a reference to the defendants in these reasons excludes the second defendant.

1. The plaintiffs’ case was made up of  various relevant documents. The plaintiffs did not read any affidavit evidence. They did not give, or call, any oral evidence. Their case was easily proved on the documents and did not require oral evidence. There was substantial criticism of their absence from the witness box but this can only be justified to the extent that they, or other witnesses called by them, were necessary to meet the defences.

1. The defendants read the following affidavits: Merhdad (Nick) Takalubegash sworn on 21 December 2018, Vinko (Vince) Gudelj sworn on 21 December 2018, Rita Takalubegash sworn on 21 December 2018 and Mr Pasquariello Pasquariello…