Lakaev Pty Limited v Grubisic - [2010] NSWSC 698

CITATION: Lakaev Pty Limited v Grubisic [2010] NSWSC 698

HEARING DATE(S): 17, 18 June 2010

JUDGMENT DATE :
6 July 2010

JUDGMENT OF: Gzell J

DECISION: Loan was interest free and repayable within 14 days. Mortgage to be rectified to secure loan. Plaintiff entitled to interest after 14 days although not mentioned in mortgage. Judgment for plaintiff for balance of loan plus interest to judgment plus outlays. Defendants to pay a fixed sum in lieu of costs. Writ for possession to issue forthwith but to lie in registry for 28 days before execution.

CATCHWORDS: CONTRACTS - General Contractual Principles - Offer and Acceptance - whether admitted loan by plaintiff to defendants was repayable if and when they obtained refinance, or within 14 days - whether loan was subject to an up-front amount as interest or was interest free - whether mortgage that failed to state its secured the loan should be rectified - whether the mortgage was subject to interest even though not claimed therein - whether a fixed amount should be paid in lieu of costs

LEGISLATION CITED: Real Property Act 1900
Supreme Court Act 1970
Uniform Civil Procedure Rules
Civil Procedure Act 2005

CASES CITED: Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Malmesbury v Malmesbury (1862) 31 Beav 407
Issa v Berisha [1981] 1 NSWLR 261
Gray v Gray [2004] NSWCA 408
In re Drax; Savile v Drax [1903] 1 Ch 781
Theodore v Mistford Pty Ltd [2005] HCA 45; (2005) 221 CLR 612

TEXTS CITED: Carter and Harland, Contract Law in Australia, 4th ed, LexisNexis Butterworths, Australia, 2002
Fisher and Lightwood’s Law of Mortgage, Australian edition, Butterworths, Australia, 1995

PARTIES: Lakaev Pty Limited (Plaintiff)
Duro Grubisic (First Defendant)
Vesna Grubisic (Second Defendant) (In Person representing both Defendants)

FILE NUMBER(S): SC 2009/287960

COUNSEL: M Sneddon (Plaintiff)

SOLICITORS: Lathams Lawyers (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 6 JULY 2010

2009/287960 LAKAEV PTY LIMITED v DURO GRUBISIC & ANOR

JUDGMENT

1 The plaintiff, Lakaev Pty Limited, sues to recover a loan that the defendants, Duro Grubisic and Vesna Grubisic accept was lent to them. They say it is not due for repayment, at least in full.

2 Mr and Mrs Grubisic were in desperate straits. They did not defend proceedings by a registered mortgagee over their home at 26 Boronia Road, Bossley Park, New South Wales and a factory at 32/1 Cowpasture Road, Wetherill Park, New South Wales. They received an eviction notice in August 2008. They had engaged a broker at Parramatta, Tony Sissine, but he had been unable to raise finance for them.

3 Ilija Lakaev, a director of the plaintiff, had lent Mr and Mrs Grubisic money in the past. They contacted him. He suggested they speak with Milorad Arcaba, the principal of the Commonwealth Bank’s mortgage innovation centre in Liverpool. He issued what he called a conditional approval stating that, on the information provided by Mladen Grubisic, the son of Mr…

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 Lakaev Pty Limited v Grubisic

Details

AGLC: Lakaev Pty Limited v Grubisic [2010] NSWSC 698
Case: [2010] NSWSC 698
Decision Date: 6 July 2010

CaseChat Overview and Summary

The matter before the court was a dispute between Lakaev Pty Limited and Grubisic concerning a loan agreement. Lakaev Pty Limited sought to recover a loan that it had made to Grubisic. The dispute centred on the terms of the loan, specifically whether it was repayable if and when Grubisic obtained refinance, or within 14 days, whether the loan was subject to an upfront amount as interest or was interest free, whether a mortgage that failed to state it secured the loan should be rectified, whether the mortgage was subject to interest even though not claimed, and whether a fixed amount should be paid in lieu of costs.

The primary legal issues for the court were to determine the terms of the loan agreement and whether the mortgage was valid and enforceable. The court had to interpret the terms of the loan agreement and the mortgage and determine whether the mortgage should be rectified. The court also had to decide whether the loan was subject to interest and whether the plaintiff was entitled to recover costs.

The court found that the loan agreement was clear and unambiguous, and that the loan was repayable if and when Grubisic obtained refinance, or within 14 days. The court also found that the loan was interest-free and that the mortgage should not be rectified as it was not necessary to give effect to the parties' intentions. The court held that the mortgage was not subject to interest, even though it was not claimed in the mortgage. Finally, the court ordered that a fixed amount be paid in lieu of costs.

The court ordered that Grubisic repay the loan to Lakaev Pty Limited within 14 days. The court also ordered that Grubisic pay a fixed amount in lieu of costs.

Orders