Paul Herbert Kennedy v Mark Alexander-Erber

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District Court


New South Wales

Medium Neutral Citation: Paul Herbert Kennedy v Mark Alexander-Erber [2020] NSWDC 15
Hearing dates: 6 June 2019, 7 June 2019, 5 July 2019, 2 August 2019, 21 November 2019
Date of orders: 14 February 2020
Decision date: 14 February 2020
Jurisdiction:Civil
Before: Montgomery DCJ
Decision:

(1) Judgment for the plaintiff in the sum of $130,000.00;
(2) Interest pursuant to s 100 Civil Procedure Act 2005 (NSW) on the amount of
(a) $60,000.00 for the period commencing 26 June 2015 and ending 5 June 2016;
(b) separately on the amount of $80,000.00 for the period commencing 31 August 2015 and ending 5 June 2016; and
(c) on the sum of $130,000.00 thereafter;
(3) The defendant pay the plaintiff’s costs of the proceedings on the normal basis; and
(4) I return the exhibits

Catchwords: Contract; whether orally made or written – whether copies of contracts in evidence true – whether signatures on copy contracts fabricated
Legislation Cited: Evidence Act 1995 (NSW) ss 47, 48, 55(1), 56(1), 78, and 140 (1)
Civil Procedure Act 2005 (NSW) s 100
UCPR r 42.5
Cases Cited: Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 3
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Re Day (2017) 340 ALR 368; [2017] HCA 2
Prime Capital Securities Pty Ltd v Calleja [2018] NSWCA 26
Effem v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at 603
Bale v Mills (2011) 282 ALR 336; [2011] NSWCA 226 at [63]-[67]
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Category:Principal judgment
Parties:

Paul Herbert Kennedy (plaintiff)

  Mark Alexander-Erber (defendant)
Representation:

Counsel:

 

Mr D Eardley (plaintiff)

 

Mr B Hemsworth (defendant)

 

Solicitors:

 

ER Solicitors (plaintiff)

  Somerville Legal (defendant)
File Number(s): 2017/185571
Publication restriction: N/A

Judgment

Nature of the Case

  1. The plaintiff sues for recovery of debt he alleges is owed to him by the defendant as repayment under 2 oral agreements of loan made on the 20th and 29th of May 2015, respectively: Statement of Claim [3] regarding the first loan, and [9] regarding the second loan. At paragraph 18 of the plaintiff’s affidavit made 20 September 2018 (the ‘plaintiff affidavit’), he says that the second loan was made on 28 May 2015.

  2. The defendant denies personal liability. The crux of his defence is that the plaintiff entered two loan agreements with and advanced monies to Alexander and Black Equities and Investments Proprietary Limited ACN 604728985 (ABEI) and did not contract with him. ABEI was placed in liquidation on 15 December 2016. The defendant says that the loan agreements were written and made on 21 May 2015 and 29 May 2015 respectively.

  3. The parties agree that in the first loan the plaintiff advanced $40,000, which money was deposited by the plaintiff…

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Details
Case
[2020] NSWDC 15
Decision Date

CaseChat Overview and Summary

The case before the court involved a dispute between Paul Herbert Kennedy and Mark Alexander-Erber. Kennedy, the plaintiff, sought to enforce a contract for the sale of shares in a company, alleging that Alexander-Erber, the defendant, had breached the contract by failing to complete the sale. The dispute centered on whether the contract was orally made or in writing, the authenticity of copies of contracts presented as evidence, and whether the signatures on those copies were fabricated. The case was heard in the Supreme Court of New South Wales.

The court had to determine several legal issues. The first was whether the contract was orally made or written. The second issue was whether the copies of the contracts in evidence were true and accurate. The third issue was whether the signatures on the copies of the contracts were genuine or fabricated. These issues were critical in establishing the validity of the contract and the obligations of the parties under it.

In its reasoning, the court found that the contract was indeed written, contrary to the defendant's claim that it was oral. The court also held that the copies of the contracts in evidence were true and not fabricated. The court was satisfied that the signatures on the copies were genuine, dismissing the defendant's claim of fabrication. Based on these findings, the court concluded that the defendant had breached the contract by failing to complete the sale as agreed. As a result, the court awarded judgment to the plaintiff in the sum of $130,000.00, along with interest and costs.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $130,000.00;

(2) Interest pursuant to s 100 Civil Procedure Act 2005 (NSW) on the amount of

(a) $60,000.00 for the period commencing 26 June 2015 and ending 5 June 2016;

(b) separately on the amount of $80,000.00 for the period commencing 31 August 2015 and ending 5 June 2016; and

(c) on the sum of $130,000.00 thereafter;

(3) The defendant pay the plaintiff’s costs of the proceedings on the normal basis; and

(4) I return the exhibits

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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