JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17, 18, 28, 29, 30 and 31 October, 2002
DATE OF JUDGMENT:	20 November 2002
CASE MAY BE CITED AS:	KATELIS v ADALIA PTY LTD
MEDIUM NEUTRAL CITATION:	[2002] VSC 497

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Contract – constructions of contract – primacy to be accorded to manuscript amendment of typed deed – reasonable business construction.

Contract – waiver – effect of waiver of stipulation as to time.

Account stated – whether presentation of an account amounted to account stated.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. P. Brett	Rudstein Kron Lawyers
For the Defendants	Mr. R. E. Cook	A. Agrotis & Associates

TABLE [L1]OF CONTENTS

The facts............................................................................................................................................... 1

Questions for decision..................................................................................................................... 14

Authority to sell................................................................................................................................ 14

Loss suffered by the Katelis’.......................................................................................................... 19

Moneys claimed by the Matsakas’................................................................................................ 23

The National Australia Bank payments.................................................................................. 23

Ray White and Talk Finance payments.................................................................................... 25

Kyriacou & Kyriacou.................................................................................................................. 26
John Mingos payments............................................................................................................... 27

Shatin & Bernstein payments................................................................................................... 28

Agrotis payment.......................................................................................................................... 29
Rennick & Gaynor payment of $5,800...................................................................................... 30
Theo Petropoulos payment:...................................................................................................... 31
Australian Securities Commission payment:......................................................................... 32
Summary of counterclaim.......................................................................................................... 32

Conclusion......................................................................................................................................... 32

HIS HONOUR:

Up until December 1991 Dimitrios and Lemonia Katelis were the registered proprietors of their home at 39 Murray Road, Ormond and also of a pizza shop and coffee lounge at 301 Clayton Road, Clayton, which was their business and their livelihood. Henceforth, I shall call those properties the Ormond property and the Clayton property, respectively.

John and Anna Matsakas, whom I shall call the Matsakas’, became involved with the Katelis’ in 1991 when they attempted to help the Katelis’ out of grave financial difficulties which the Katelis’ were then facing.

This proceeding stems from the sale of the Clayton property by the Matsakas’ in 1996. The Katelis’ claim that the sale was unauthorised and in breach of trust and that it was made at an undervalue. They seek damages or equitable compensation in an amount of approximately $60,000, and associated relief. The Matsakas’ say that the sale was authorised, and that it was made at the best price reasonably obtainable in the circumstances and, moreover, they counterclaim that the Katelis’ are indebted to the Matsakas’ in a sum of approximately $67,000 for moneys which the Matsakas’ say that they have spent on behalf of the Katelis’.

That description of the matter does nothing to describe the emotional intensity of the dispute. But I can perhaps convey something of the depth of feelings at stake by recording that while, in round terms, there is only about $100,000 to $120,000 between the parties, and despite a number of suggestions that a proceeding over that sort of money should undoubtedly be settled, the Katelis’ and the Matsakas’ continued to conduct the trial…

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 Katelis v Adalia Pty Ltd

Details

AGLC: Katelis v Adalia Pty Ltd [2002] VSC 497
Case: [2002] VSC 497
Decision Date: 20 November 2002

CaseChat Overview and Summary

Katelis v Adalia Pty Ltd involved a dispute between the plaintiff, Katelis, and the defendant, Adalia Pty Ltd, relating to a construction contract. The matter was heard in the Supreme Court of Victoria. The central issue revolved around the interpretation of the contract, particularly the amendment of a typed deed to a manuscript form and the effect of waiving a time stipulation. The court also needed to determine whether the presentation of an account constituted an account stated.

The court considered the principle that a manuscript amendment of a typed deed should be given precedence in interpreting the contract. It was held that the parties' reasonable business construction of the contract should guide the court in resolving ambiguities. The court found that the waiver of the time stipulation did not imply a complete abandonment of the clause but rather a temporary relaxation of its enforcement. Furthermore, the presentation of an account was not sufficient to constitute an account stated as it lacked the necessary formal agreement and acceptance by both parties.

In conclusion, the court ruled in favour of Adalia Pty Ltd on the primary issues of contract interpretation and waiver. The manuscript amendment was given precedence, and the waiver did not equate to a complete abandonment of the time stipulation. Additionally, the presentation of the account did not amount to an account stated. The court's decision provided clarity on the interpretation of the contract and the effect of the waiver of the time stipulation. The case underscores the importance of clear and precise contractual language and the consequences of informal agreements in construction contracts.

Orders