Katelis v Adalia Pty Ltd (No 2)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7121 of 1998

DIMITRIOUS KATELIS and LEMONIA	Plaintiffs
KATELIS
v
ADALIA PTY LTD (ACN 050 237 888)
JOHN MATSAKAS and ANNA MATSAKAS	Defendants

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JUDGE:	NETTLE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November and 10 December 2002
DATE OF JUDGMENT:	10 December 2002
CASE MAY BE CITED AS:	KATELIS v ADALIA PTY LTD (No. 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 557

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Costs – offers of settlement without prejudice except as to costs – offers not reasonable in all the circumstances.

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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

HIS HONOUR:

1. On 20 November 2002 I published reasons for judgment in the first part of these proceedings, in which I concluded:

·First, that the Matsakas’ did not have authority to sell the Clayton property at $290,000 as they had;

·    Secondly, that it was not demonstrated that the Katelis’ had suffered any loss by reason of the sale; and

·    Thirdly, that the Matsakas’ were entitled to judgment on their counterclaim in the sum of $42,840.18, calculated as follows:

National Australia Bank payments:	$12,645.36
$12,636.42
Ray White:	nil
Talk Finance:	nil
Kyriacou & Kyriacou:	$2,000.00
$5,000.00
John Mingos:	$1,119.00
Shatin & Bernstein:	nil
A. Agrotis:	$2,919.40
Rennick & Gaynor:	$5,800.00
Theo Petropoulos:	nil
Australian Securities Commission:	$720.00
Total:	$42,840.18

1. In subsequent submissions as to the orders which should be made it has been pointed out to me that the computation does not allow for the $10,173.06 which was recovered on sale of the Clayton property or the $650.00 conceded in the course of argument not to be recoverable.

1. In the result the amount for which the Matsakas’ are entitled to judgment on their counterclaim must be reduced to $27,663.12, calculated as follows:

National Australia Bank payments:

$12,645.36

$12,636.42

Ray White:

           nil

Talk Finance:

           nil

Kyriacou & Kyriacou:

           nil

John Mingos:

           nil

Shatin & Bernstein:

$3,765.00

A. Agrotis:

$2,919.40

Rennick & Gaynor:

$5,800.00

Theo Petropoulos:

           nil

Australian Securities Commission:

$720.00

Sub Total:

Less:  Amount received on sale of Clayton property

       :  Amount conceded[1]

Total:

$38,486.18

$10,173.06

$650.00

$27,663.12

[1]This amount was conceded in final submissions.

1. In what follows, I set out my reasons as to remainder of the orders that I propose to make.  Expressions used below have the same meanings as in my earlier reasons for judgment.

Declaration of trust

1. The plaintiffs and the defendants both seek a declaration as to the precise terms on which Adalia Pty Ltd holds the Ormond property on trust for the Katelis’.  The difference between the parties is as to the amount of indebtedness which the Katelis’ must discharge under the Deed before becoming entitled to take over control of the property.

1. The Katelis’ contend that upon its proper construction, and in the events which have occurred, the Deed provides only that the Katelis’ must repay amounts borrowed by…