Icognition Pty Ltd v Peter James Callaughan

ICOGNITION PTY LTD V PETER JAMES CALLAUGHAN
                [2012] ACTSC 19 (10 February 2012)

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – repudiation or breach of a loan agreement – defendant was a director of the plaintiff – dispute regarding moneys received by the defendant from the plaintiff – defendant claims that the moneys were remuneration – alternatively moneys were received as a loan from the plaintiff and do not require immediate repayment – found that the defendant breached the terms of the loan agreement

Income Tax Assessment Act 1936 (Cth)

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115

No. SC 174 of 2008

Judge:             Burns J            
Supreme Court of the ACT

Date:              10 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 174 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:  ICOGNITION PTY LTD

Plaintiff        

AND:PETER JAMES CALLAUGHAN

Defendant

ORDER

Judge:  Burns J
Date:  10 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $557,990.20.

1. The plaintiff company’s claim is for repayment of certain sums received by the defendant as loans from the plaintiff together with interest.  With respect to some of the monies received, the plaintiff claims damages based upon breach of a loan agreement or for repudiation of that agreement.  The monies claimed by the plaintiff may conveniently be divided into those received prior to 27 April 2006 and those received after that date.  Those monies received by the defendant prior to 27 April 2006 are said to be repayable according to the terms of the loan.  Those monies received on or after that date are the subject of the claim based on repudiation or breach of agreement.

History

1. Some time in or around 1997 the defendant, Joe Mammoliti and Nigel Curruthers-Taylor began to work together at a company called CBSI Pty Ltd, which later became known as Alphawest.  On 19 March 2003 the defendant registered the plaintiff company, with himself and his wife as directors.  About one month later the defendant was made redundant from Alphawest.  Mammoliti continued at Alphawest until around June 2003, at which time he was also made redundant.  On 15 November 2003 Mammoliti became a director of the plaintiff.  Curruthers-Taylor continued with Alphawest until he also left in May 2004.  On 6 July 2004 he became a director of the plaintiff.  On the same date the defendant’s wife ceased to be a director. 

1. Ultimately, on 20 October 2008 a shareholders’ agreement was executed in which it was agreed that three companies would be the shareholders of the plaintiff.  These companies were Kygera Pty Ltd for The Mammoliti Investment Trust, Meralda Pty Ltd as trustee for the Callaughan Family Trust, and Gingarna Pty Ltd as trustee for the Carruthers-Taylor Trust.  Each company held an equal number of shares in the plaintiff.

1. It was common ground between Mammoliti, Curruthers-Taylor and the defendant that in the years leading up to the defendant leaving Alphawest in 2003 they discussed the possibility of…