Patricia Catherine Anthony v Vince Perry

District Court

New South Wales

Medium Neutral Citation:

Patricia Catherine Anthony v Vince Perry and Anor [2015] NSWDC 120

Hearing dates:

6 July 2015 – 8 July 2015

Decision date:

17 July 2015

Jurisdiction:

Civil

Before:

Mahony SC DCJ

Decision:

Verdict and judgment for the plaintiff
For Orders see [160]

Catchwords:

Contractual indemnity for currency trading losses

Cases Cited:

Andar Transport Pty Limited v Brambles Limited (2004) 217 CLR 424
Bofinger v Kingsway Group Limited (2009) 239 CLR 269
Jones v Dunkel (1959) 101 CLR 298
Manly Council v Byrne and Anor [2004] NSWCA 123
MSPR Pty Limited v Advanced Breaking Technology Limited [2013] NSWCA 416

Texts Cited:

Modern Contract of Guarantee by O’Donovan & Phillips, 2015 Thomson Reuters

Category:

Principal judgment

Parties:

Patricia Catherine Anthony (Plaintiff)
Vince Perry (1st Defendant)
Perry Properties Pty Limited (2nd Defendant)

Representation:

Counsel:
D L Cook (Plaintiff)
P J English (Defendant

 

Solicitors:
Taperell Rutledge Lawyers

    Houston Dearn O’Connor

File Number(s):

14/127711

Publication restriction:

Nil

Judgment

The Plaintiff’s Claim

1. The plaintiff sues the defendant for the sum of $204,062.00 plus interest on the basis of an agreement made on 10 September 1999 (“the first Agreement”). Pursuant to that agreement the plaintiff alleges that she agreed to advance to the first defendant the sum of $250,000.00 for the purpose of trading currencies, and further, that the first defendant indemnified the plaintiff against the loss of that sum and the second defendant guaranteed to the plaintiff the repayment to her of that sum.

2. On or about 13 September 1999 the plaintiff alleges the sum of $250,000.00 was paid into an account nominated by the defendants for the purpose of currency trading. On 2 November 1999, a variation was made to the first Agreement by which the parties agreed to vary the first Agreement by increasing the capital sum paid by the plaintiff by a further $250,000.00 on identical terms and conditions (“the first Variation Agreement”). On 3 November 1999, the plaintiff paid a further $250,000.00 into an account nominated by the defendants.

3. On 1 February 2000, the plaintiff alleges that the parties agreed to further vary the first Agreement by increasing “the Patricia Anthony capital” by $200,000.00, bringing “the total investment sum to $700,000.00, incorporating the identical terms and conditions as previous stated” (“the second Variation Agreement”).

4. In or about February 2000, the sum of $200,000.00 was paid into an account nominated by the defendants.

5. By the end of the year 2000 the whole of the capital sum had been lost on currency exchange transactions.

6. The plaintiff claims that between May 2001 and December 2009 the defendants paid to her instalments totalling $472,938.00, in part reduction of the capital sum. In addition, it was agreed that the plaintiff had received chattels from the first defendant to a value of $23,000.00, thereby leaving a balance the plaintiff claimed as owing in the sum of $204,062.00.

The Defence to the Plaintiff’s Claim

7. By an Amended Defence filed on 24 February 2015, the defendants deny that the second Variation Agreement…