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

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 152
Case No:	CIV:669/2015	Heard:	26-27 NOVEMBER 2015
Coram:	WAGER DCJ	Delivered:	16/12/15
Location:	PERTH
No of pages:	17	Judgment 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…

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.

Keep reading for free

Create a free CaseChat account to read Kosserkas v Bhavya Holdings Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] WADC 152
Decision Date: 16 DECEMBER 2015

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.