Mailpostie Pty Ltd v Kritas

[2013] VCC 573

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-01944

MAILPOSTIE PTY LTD & ORS	Plaintiffs
v.
PETER KRITAS & ANOR	Defendants

---

JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2013
DATE OF JUDGMENT:	27 May 2013 (revised 28 May 2013)
CASE MAY BE CITED AS:	Mailpostie Pty Ltd & Ors v  Kritas & Anor
MEDIUM NEUTRAL CITATION:	[2013] VCC 573

REASONS FOR JUDGMENT

---

Catchwords:            Assessment of damages – Investment in business made on basis that buy-back was personally guaranteed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I. Percy	ComLaw
For the First Defendant	Mr P. Kritas in person

HIS HONOUR:

1On 10 May 2013, I determined an application by Mr Kritas by summons dated 6 March 2013 to set aside a default judgment entered against him. I set aside part of the judgment in respect of certain claims but refused to set aside judgment in respect of what I described as the “guarantee claim”. The hearing today is for the assessment of damages in relation to the guarantee claim.

2Damages are to be assessed on the basis that the allegations made in relation to the guarantee claim have been made out. In the order I made on 10 May 2013, I set out the paragraphs of the Statement of Claim which related to the guarantee claim.

3The damages sought by the plaintiff are the sum of $838,750 together with interest on that sum from the date the Writ was issued. The sum of $838,750 is calculated on the basis of the buy-back of 50 zones at $15,250. These are matters which are referred to in paragraphs 9 to 11 of the Agreement of 30 June 2009.

4Paragraph 10 and 11 of the Agreement provided that:

“10. Should you become liable to proceed with the Mt Hotham purchase before we complete the sale of your 50 BDP zones and subject to reasonable notice, we agree to buy back the remaining unsold zones up to a maximum of 50 zones (sales plus buy-backs) at the same purchase price for each zone with payment to be made to you no later than 28 days from the date of written notice.

11. Notwithstanding the outcome of Mt Hotham, we agree to buy back the remaining unsold zones up to a maximum of 50 zones (sales plus buy-backs) at the same purchase price for each zone by 31 December 2009 and the last date of payment to you by 7 January 2010”.

5Clause 9(iii) of the agreement provided that, “on settlement of the sale of each zone the price paid to you for each zone will be $15,250 plus GST inclusive of agency fee and SAF (“purchase price”)”.

6The obligation to buy back the remaining unsold zones as provided for in paragraphs 10 and 11 was subject to the provision by Mr Kritas of his “personal guarantee for the due and punctual payment of the monies detailed in paragraphs 10 and 11 herein” (paragraph 12).

7Plaintiffs’ counsel, Mr Percy, in his written submissions suggested damages might be assessed on the basis that the plaintiffs would not have entered into the transaction at all if the personal guarantee had not been offered by Mr Kritas. The plaintiffs have, however, not sought the assessment of damages on that basis, but rather, on the more limited basis of the “buy-back” price referred to in the Agreement dated 30 June 2009 and the personal guarantee by Mr Kritas of those obligations.

8In the circumstances, I consider it appropriate to assess damages at the sum of $838,750 as claimed by the plaintiff together with statutory interest from the date of the Writ.

9The orders I will make are as follows:

1.     The plaintiffs’ damages in respect of the guarantee claim are assessed at the total sum of $838,750.

2.     Judgment for the plaintiffs against the first defendant that the first defendant pay to the plaintiffs the sum of $838,750, together with statutory interest on the said sum from 2 May 2011 to today of $182,410.89, total judgment $1,021,160.89.

3.     The first defendant must pay the plaintiffs’ costs, including any reserved costs, of the assessment of damages, to be taxed in default of agreement.

4.     By 2 September 2013, the plaintiffs and the first defendant must advise the Directions Group in writing as to what is proposed in relation to the determination of the matters remaining in the proceeding, in respect of which judgment was set aside by order dated 10 May 2013.

- - -

Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 27 May 2013 and revised on 28 May 2013.

Dated: 28 May 2013

Catherine Kusiak

Associate to His Honour Judge Anderson