Haralabakis v Aronis No. DCCIV-98-930 Judgment No. D85

[1999] SADC 85

HARALABAKIS v ARONIS

[1999] SADC 85

Judge Anderson
Civil

1 The Plaintiff claims from the Defendant the sum of $50,000 pursuant to an oral agreement allegedly made by them on 21 May 1998.
2 The history of this action commences prior to April 1990 when the Plaintiff, her husband and family were on friendly terms with the Defendant and his family.
3 In April 1990, when the Defendant was contemplating the purchase of a business, he sought a loan from the Plaintiff.  A written agreement, which is undated, but which, in its body, refers to the date 24 April 1990 evidenced the loan by the Plaintiff to the Defendant of the sum of $60,000.  The loan was to be interest free and repaid on 24 April 1991, failing which the institution of proceedings to recover any outstanding monies was contemplated.  This written document was signed by the parties.
4 In these proceedings that loan agreement and its terms were not in doubt.  Neither is it in doubt that the principal had not been fully repaid on 24 April 1991.
5 On 18 April 1997, the Plaintiff instituted proceedings in this Court seeking the balance of principal then unpaid, together with interest, from the Defendant.  The Plaintiff’s claim was in the sum of $45,303.35, together with costs and interest from the date of issue.
6 In his defence, the Defendant admitted a continued indebtedness of $10,000, but otherwise denied liability.  After the usual pre-trial steps, the matter was listed for hearing on 17 March 1998.  Upon the application of the Defendant, and without objection, the trial was adjourned to 6 July 1998.
7 On 20 May 1998, a relation by marriage of the Defendant rang the Plaintiff and as a consequence thereof, on 21 May 1998, she and her husband went to the office of Mr Constantine Markou, where they met the Defendant.
8 The Plaintiff said in evidence that she went expecting to be involved in settlement discussions with the Defendant.
9 The Defendant said in evidence that he arranged the conference in order that he might have the Plaintiff make admissions as to certain monies received by her in reduction of his indebtedness.  These sums were pleaded in the 1997 action and that pleading was repeated in this action.  It was the Defendant’s intention to have these admissions recorded by Mr Markou who is a Chartered Accountant.
10 Mr Markou was known to each party and had, at different times acted for them.  In addition, he, the Defendant and the Plaintiff’s husband were all actively involved in the Hellas Soccer Club.
11 Each of those whom I have named gave evidence.  Mr Markou attended upon subpoena issued by the Plaintiff.  He plainly did not want to be involved in these proceedings.  He was a most uncomfortable witness.  He said that before trial, but at some unidentified time subsequent to 21 May 1998, the Plaintiff’s husband had attended upon him to require that he "do the right thing in Court" (T p113) upon pain of the revelation of some matters not connected with this action.  I accept Mr Markou’s evidence that his evidence was not affected by anything which Mr Haralabakis had said to him at that time.
12 Whilst Mr Markou was obviously uncomfortable in giving his evidence, there is nothing about his evidence which displays favouritism.  To some extent, and no doubt somewhat conveniently, he was unable to recall the events of 21 May 1998 in great detail.  His evidence supported that of the Plaintiff on important points.
13 All witnesses agreed that upon arrival at Mr Markou’s office, they greeted each other and Mr Markou then showed them into a meeting room.  They then discussed the debt owed by the Defendant to the Plaintiff.  They did so with vigour and on at least one occasion were asked to make less noise.
14 The time was reached when Mr Markou was required to attend the meeting.  The Defendant went and brought him in.
15 There was then a further discussion and Mr Markou noted the matters as discussed by the parties.  Generally, his notes reveal what was said to him by the Defendant.  The notes of his discussion are the exhibit P2.
16 The Defendant denied in evidence that he had agreed to an indebtedness to the Plaintiff in the sum of $50,000 before Mr Markou joined the meeting.
17 He also denied that thereafter he agreed to such a proposal notwithstanding that that is the seeming effect of the notes made by Mr Markou - the exhibit P2.
18 As might be expected, the witnesses were somewhat difficult to assess.  The Plaintiff and her husband gave evidence through an interpreter.  They were criticised for this by Mr Rau of counsel for the Defendant.  He did so on the basis that they had each lived in Australia for over 30 years and could understand English and so had more time to consider their answers.  Their response, that their formal English was imperfect, is not surprising and I attach no criticism to the manner in which they gave their evidence in this regard.
19 The Plaintiff was the most impressive of all witnesses.  She gave her evidence in a straight forward way and it had about it the ring of commonsense.  She denied demanding from the Defendant the sum of $50,000 come what may.  She said that after she agreed certain sums claimed by the Defendant he agreed to pay her $50,000.
20 Her husband did what he could to support his wife.  Generally, he was restrained but occasionally did not answer a question which would add to that support, as might have been expected.  On other occasions he failed to directly answer questions where he was unable to calculate the affect of his answer.
21 The Defendant was a poor witness who sought to deny the effect of what it is alleged he had admitted.  His endeavour to have the Plaintiff make certain concessions, which I am satisfied she did, seems to have deflected him from a reasonable and rational assessment of his position.  At all times he denied that he had agreed to pay the sum of $50,000 to the Plaintiff.  He maintained that there was no final agreement whilst admitting that he had agreed to an indebtedness in that sum after the Plaintiff had agreed that he was entitled to $22,500 in offsets.  He said that his agreement was dependent upon the Plaintiff’s solicitor producing an agreement in writing upon which he would take advice from his solicitor prior to some further agreement evidenced by execution.
22 Whilst Mr Markou said that there was some mention of having the agreement formally engrossed, he offered the rather tenuous position of the Defendant no support at all.  On this crucial issue he was supportive of the Plaintiff and I accept his evidence.
23 It is plain from the evidence of Mr Markou that he had the impression that the parties had achieved a "resolution" (T p103) or reached a "conclusion" (T p105) from the outset of his attendance at the meeting.  He said that the parties then agreed as to the repayment timetable which he noted.  The Defendant was unable to explain why he entered upon and concluded this part of the meeting, as he agreed he did, if there had been no earlier agreement as to liability and quantum.
24 Equally, it is obvious from the evidence that in return for agreement upon the sum due, the Plaintiff was prepared to make whatever concessions the Defendant required as to the state of his indebtedness in order to mollify his children.  Her sole aim, as she said in evidence, was the bottom line - her claim in the District Court proceedings plus interest plus her legal costs.  As was said in evidence, about a year after issue that was, in round figures, about $50,000.
25 The Plaintiff also pleaded a further claim in relation to costs over and above the $50,000.  There is no evidence to support this claim.  It is unrecorded and unremembered by Mr Markou.  I am satisfied that if it had been discussed in the manner alleged by the Plaintiff then Mr Markou would have noted it.
26 I am also satisfied that each of the Plaintiff and Defendant knew that they had resolved the District Court proceedings by their agreement of 21 May 1998.  The terms of payment showed that for the term of those payments - 18 months - the Plaintiff forbore interest on the agreed sum.
27 I find that on 21 May 1998 the parties agreed to compromise the District Court proceedings by reaching an agreement that the Defendant pay to the Plaintiff the sum of $50,000 in three instalments with the first to be made on 23 September 1998 - the day of the Plaintiff’s birthday.  Such agreement was not in any way contingent upon some further action, such as its engrossment by the Plaintiff’s solicitor as the Defendant alleged.
28 There will be judgment for the Plaintiff in the sum of $50,000.  I shall hear counsel as to interest and costs.