Koulouris v Haidaris (No 2) - [2019] VSC 806

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2019 01420

ANDREAS KOULOURIS	Plaintiff
v
NIKOLAOS HAIDARIS (also known as NICLAS HAIDARIS and NIKOLAS HAIDARIS)	Defendant

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JUDGE:	CONNOCK J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2019
DATE OF JUDGMENT:	6 December 2019
CASE MAY BE CITED AS:	Koulouris v Haidaris (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 806

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PRACTICE AND PROCEDURE – Civil Procedure Act 2010 (Vic) ss 61, 63, 64 – Application for summary judgment – Principles to be applied – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213 – Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd (2001) 35 VR 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Lenga	Kalus Kenny Intelex
For the Defendant	Appeared in person

HIS HONOUR:

Introduction and summary

In this proceeding the plaintiff seeks repayment of loans alleged to have been made to the defendant. Excluding interest, the total amount alleged to be owed to the plaintiff is $1,080,000 (Alleged Debt).

The plaintiff seeks summary judgment in respect of the Alleged Debt, together with interest pursuant to s 58 of the Supreme Court Act 1986 (Vic) (Act) calculated at the rate fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) (Rates Act). For the relevant period[1] that interest rate is 10 per cent per annum.[2]
[1]The period in respect of which interest was claimed was from the date of the filing of the writ (2 April 2019) until judgment. As will be seen, this was revised to 4 April 2019, being the date of service.
[2]This was the rate fixed by the Attorney-General pursuant to the Rates Act with effect on and from 1 February 2017.

For the reasons that follow judgment should be given in respect of the Alleged Debt and interest. In summary, this is because the defendant’s defence to the claim for the Alleged Debt has no real prospect of success, the defendant does not dispute that the Alleged Debt is due and payable, and it is appropriate that interest be paid at the 10 per cent per annum rate fixed under the Rates Act.

The Alleged Debt claim and the defence

Aspects of the factual background to the claim were set out in my reasons in Koulouris v Haidaris [2019] VSC 392,[3] to which I refer, but will not set out again. Briefly, it is alleged that, pursuant to a series of oral agreements, between January and August 2017 a number of short-term loan advances totalling $1,170,000 were made by the plaintiff to the defendant. It is alleged that only $90,000 has been repaid, leaving the Alleged Debt past due and payable.
[3]At [2]–[8].

The plaintiff also alleged that interest was agreed to be paid in respect of each loan. The interest rates and amounts alleged to have…

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.

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Details

Case: [2019] VSC 806
Decision Date: 6 December 2019

CaseChat Overview and Summary

The case of Koulouris v Haidaris (No 2) involved the defendant, Haidaris, applying for summary judgment against the plaintiff, Koulouris, in relation to a debt of $178,608.29. The application was heard in the County Court of Victoria, presided over by Judge J. The central legal issue was whether the defendant was entitled to summary judgment based on the undisputed evidence provided, specifically whether the plaintiff had any real prospect of successfully defending the claim.

The court examined the principles applicable to summary judgment applications, referencing previous cases such as Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Hausman v Abigroup Contractors Pty Ltd, and Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd. The court held that for summary judgment to be granted, the moving party must demonstrate that there is no real prospect of the defendant succeeding in their defence. In this instance, the court found that the defendant had provided compelling evidence of an outstanding debt, with no counter-evidence presented by the plaintiff to dispute the claim. The court noted that the plaintiff had failed to provide any evidence or argument that could potentially defeat the defendant's claim. Therefore, the court determined that the defendant had met the requisite standard for summary judgment.

The court granted the defendant's application for summary judgment, ordering the plaintiff to pay the full amount of $178,608.29, along with interest and costs. The plaintiff was also ordered to pay the defendant's costs of the application on the standard basis. The court emphasised the importance of the plaintiff providing evidence or argument to counter the defendant's claim, had any existed, to avoid the grant of summary judgment.

Orders