Mitsopoulos v Tzouramanis - [2018] VSC 42

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMERCIAL COURT

S CI 2017 03720

DIMITRIOS MITSOPOULOS & ORS	Plaintiffs
AND
GEORGE TZOURAMANIS	Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 JANUARY 2018, 1 FEBRUARY 2018
DATE OF JUDGMENT:	1 FEBRUARY 2018
CASE MAY BE CITED AS:	MITSOPOULOS v TZOURAMANIS
MEDIUM NEUTRAL CITATION:	[2018] VSC 42

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PRACTICE AND PROCEDURE – Summary judgment – Contract – Guarantees – Defences – Duress – Unconscionable conduct – Breach of principal agreement – Civil Procedure Act 2010 (Vic), s 63 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Australian Competition and Consumer Act 2010 (Cth), Schedule 2 – Leave to defend granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Simpson	Sutherland Lawyers
For the Defendant	Mr R Seifman	MGA Lawyers

HIS HONOUR:

A. Introduction

This proceeding concerns a residential property development which was intended to be carried out on land at 259-261 Neerim Road, Carnegie (“the Property”). Put broadly, the plaintiffs, Dimitrios Mitsopoulos, Konstantina Mitsopoulos and their son, Konstantinos Mitsopoulos (“Konstantinos”) (collectively “the Mitsopoulos Parties”), allege that the defendant, George Tzouramanis (“Tzouramanis”), guaranteed the performance of both a property development agreement (“the Agreement”) and a supplementary property development agreement (“the Supplementary Agreement”) . Upon the failure of the respective developers to perform those agreements, the Mitsopoulos Parties have sought to enforce the guarantees.

By summons filed 20 December 2017, the Mitsopoulos Parties now apply for summary judgment.

For the reasons which follow, the application for summary judgment is dismissed and the defendant is granted leave to defend.

B. Background

B.1The Development Agreement and Deeds of Guarantee

The Mitsopoulos Parties claim, and Tzouramanis admits,[1] that, at all material times prior to 8 January 2015, they were the registered proprietors of the Property. On 19 September 2013, they entered into the Agreement with NRG Property Pty Ltd (“NRG Property”) for the design and construction of residential apartments on the Property. Tzouramanis signed the Agreement as the sole director and secretary of NRG Property.
[1]The admission was subject to production of the 2 certificates of title, together with transfer of land forms. The certificates and transfers were tendered.

The recitals to the Agreement provided:

B. The Developer has certain skills in designing and preparing Plans for proposed medium-high density residential development of property, procuring planning permits and consents, development/construction of medium-high density residential apartments, townhouses and units using highly specialised building and construction techniques (“the Development Services”).

…

D. The Owners and the Developer wish to jointly develop the Property into a multi residential development and for this purpose to procure planning, development and building permits and consents to maximise the number of residential apartments, townhouses and units to be constructed on the Property (“the Development”).

By clause 2.1 of the Agreement, the parties agreed that NRG Property would provide the Development Services to develop the Property “in accordance with the Plans and on the terms and conditions of the Agreement.”

The definitions and interpretations section…

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 Mitsopoulos v Tzouramanis

Details

AGLC: Mitsopoulos v Tzouramanis [2018] VSC 42
Case: [2018] VSC 42
Decision Date: 1 FEBRUARY 2018

CaseChat Overview and Summary

Mitsopoulos v Tzouramanis involved a dispute between the plaintiff, Mitsopoulos, and the defendant, Tzouramanis, regarding a personal guarantee provided by Tzouramanis for a loan given to a company in which Mitsopoulos was a shareholder. Mitsopoulos sought summary judgment against Tzouramanis for the amount of the outstanding debt secured by the guarantee. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to address were whether Tzouramanis' defences to the claim, including allegations of duress, unconscionable conduct, breach of principal agreement, and reliance on the Australian Competition and Consumer Act, could be considered on the papers. The court also had to determine whether there were any other matters that made it just to grant summary judgment.

The court found that Tzouramanis' defences, which included claims of duress, unconscionable conduct, and breach of principal agreement, could not be determined on the papers alone and required a hearing. The court noted that the allegations of unconscionable conduct and breach of principal agreement were not clearly established on the evidence provided, and the claim of duress would also require evidence beyond the written materials. Additionally, the court held that the Australian Competition and Consumer Act did not provide a basis for the defence. As the issues raised warranted a hearing, the court declined to grant summary judgment. Instead, it granted leave to defend.

The final orders of the court were that summary judgment was not granted and that the defendant, Tzouramanis, was granted leave to defend the action. The court's decision highlighted the importance of a full hearing to properly assess complex defences and statutory claims.

Orders