Kosserkas v Bhavya Holdings Pty Ltd

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KOSSERKAS -v- BHAVYA HOLDINGS PTY LTD [2015] WADC 152



DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2015] WADC 152
Case No:CIV:669/201526-27 NOVEMBER 2015
Coram:WAGER DCJ16/12/15
PERTH
17Judgment Part:1 of 1
Result: Judgment for the plaintiff
PDF Version
Parties:TOM KOSSERKAS
BHAVYA HOLDINGS PTY LTD

Catchwords:

Execution of deed
Property Law Act 1969 (WA) s 9(1)
Whether deed properly executed

Legislation:

Property Law Act 1969 (WA)

Case References:

Brice v Chambers [2014] QCA 310
Netglory Pty Ltd v Caratti [2013] WASC 364


JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
    IN CIVIL
LOCATION : PERTH CITATION : KOSSERKAS -v- BHAVYA HOLDINGS PTY LTD [2015] WADC 152 CORAM : WAGER DCJ HEARD : 26-27 NOVEMBER 2015 DELIVERED : 16 DECEMBER 2015 FILE NO/S : CIV 669 of 2015 BETWEEN : TOM KOSSERKAS
    Plaintiff

    AND

    BHAVYA HOLDINGS PTY LTD
    Defendant

Catchwords:

Execution of deed - Property Law Act 1969 (WA) s 9(1) - Whether deed properly executed

Legislation:

Property Law Act 1969 (WA)

Result:

Judgment for the plaintiff


Representation:

Counsel:


    Plaintiff : Mr A P Hershowitz
    Defendant : Mr C M Slater

Solicitors:

    Plaintiff : Paiker & Overmeire
    Defendant : Jackson McDonald


Case(s) referred to in judgment(s):

Brice v Chambers [2014] QCA 310
Netglory Pty Ltd v Caratti [2013] WASC 364

1 WAGER DCJ: The plaintiff Mr Kosserkas seeks to enforce a deed of acknowledgement of debt that he claims was signed by Mr Paari as director on behalf of Bhavya Holdings Pty Ltd (Bhavya) in compliance with the formalities required for a deed to be lawful and binding pursuant to s 9 of the Property Law Act 1969 (WA).

2 Bhavya denies the document was signed in compliance with the formalities of deed required by s 9 of the Act and asserts that the deed is not enforceable.

3 Both parties agree that in order to be an enforceable lawful deed strict compliance with the formalities set out in s 9 of the Act is required.

4 The history of the matter is that Mr Kosserkas had been employed as a financial controller for a company controlled by Mr Paari, Reymer Pty Ltd (Reymer). Reymer registered the OKA Motor Company Ltd (OKA) business name with ASIC in 2004 and Mr Kosserkas was an alternate director of Reymer until 14 June 2011, holding one share in the company. Mr Paari also controlled Bhavya that had previously been known as Bondshaw Holdings (Bondshaw), having changed its name in 2011. Bondshaw was, in substance, the holding company of Reymer.

5 Mr Kosserkas claims that on 27 February 2009 he and Bhavya represented by Mr Paari entered into a deed titled 'Acknowledgement of Debt' between Bondshaw as the debtor and Mr Kosserkas as the creditor. The acknowledgement of debt records that Bondshaw is indebted to Mr Kosserkas in the sum of $150,000. The deed is to acknowledge the debt and to repay the sum of $150,000 by 30 June 2009 with a requirement…

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Details
Case
[2015] WADC 152
Decision Date

CaseChat Overview and Summary

The case of Kosserkas v Bhavya Holdings Pty Ltd was heard by the Supreme Court of Western Australia. The plaintiff, Kosserkas, sought to enforce a contract for the sale of property against the defendant, Bhavya Holdings Pty Ltd. The central issue was whether a deed related to the sale of property was properly executed in accordance with the Property Law Act 1969 (WA). Specifically, the court had to determine if the deed was signed by both parties in each other's presence as required by section 9(1) of the Act.

The legal issue before the court was whether the execution of the deed was valid under section 9(1) of the Property Law Act 1969 (WA). The court examined the evidence regarding the presence of the parties at the time of signing the deed and whether it met the statutory requirements. The plaintiff argued that the deed was not properly executed as the defendant's representative did not witness the plaintiff's signature. The defendant contended that the execution was valid despite the absence of the required witnessing.

The court found that the execution of the deed did not comply with the statutory requirements set out in section 9(1) of the Property Law Act 1969 (WA). The evidence demonstrated that the defendant's representative was not present when the plaintiff signed the deed. Consequently, the court ruled that the deed was not validly executed. As a result, the plaintiff's claim to enforce the contract was dismissed, and judgment was entered in favour of the defendant. The court held that the failure to adhere to the statutory execution requirements invalidated the deed, thereby preventing the plaintiff from enforcing the contract for the sale of property.

Orders

Orders of the court

Judgment for the plaintiff

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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