| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PERPETUAL TRUSTEES VICTORIA LTD -v- MICHEL-ELHAJ [2011] WADC 204 CORAM : FENBURY DCJ HEARD : 28 SEPTEMBER 2010 DELIVERED : 21 NOVEMBER 2011 FILE NO/S : CIV 1250 of 2010 BETWEEN : PERPETUAL TRUSTEES VICTORIA LTD Plaintiff
AND
RICHARD MICHEL-ELHAJ
Defendant
Catchwords: Claim for monies due and owing pursuant to a loan agreement tried in absence of defendant - Turns on own facts Legislation: Nil Result: Judgment for the plaintiff
(Page 2)
Representation: Counsel:
Plaintiff : Mr M J Timoney
Defendant : No appearance
Solicitors:
Plaintiff : Stables Scott
Defendant : Not applicable
Case(s) referred to in judgment(s):
Banque Commercial SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
(Page 3)
1 FENBURY DCJ: These are brief reasons for orders made at trial in the absence of the defendant on 28 September 2011. Perpetual Trustees' claim is for monies due and owing pursuant to a loan agreement particularised in the statement of claim and a guarantee and indemnity Mr Richard Michel-Elhaj gave in respect of the liability of a corporation to which monies were also advanced.
2 Perpetual Trustees also commenced proceedings against that corporation and obtained a judgment in default of defence on 1 April 2011. Mr Michel-Elhaj was a director of that corporation. 3 At the trial of the action listed for 28 September 2011 there was no appearance of Mr Michel-Elhaj or any legal representative. 4 As contemplated by O 34.2.2, the court proceeded with the trial of the action in the absence of the defendant. I decided to proceed with the trial in the circumstances because of the history of non-attendance by Mr Michel-Elhaj or his legal representative and information contained in an affidavit of Perpetual Trustees' counsel, Mr Timoney, as to efforts made to serve Mr Michel-Elhaj with notice of the listing conference. 5 In short, given the history of the matter there was no surprise at the non-attendance of Mr Michel-Elhaj at the trial. 6 In circumstances of the non-attendance of a defendant at proceedings, Mason CJ and Gaudron J in Banque Commercial SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 282 said: Any judgment which the plaintiff might thereafter obtain necessarily depends upon the plaintiff's establishing entitlement to relief, albeit that some part of his or her case might be established by the pleadings or that, in certain circumstances, he or she might be entitled to summary judgment. 7 In this case significant facts were admitted in the defence dated 22 March 2011 filed on behalf of Mr Michel-Elhaj. 8 In short, the existence and terms of the loan agreements and the guarantee relied upon were admitted. The positive case put by the defendant was dealt with by counsel's written submissions that: It is submitted that the positive facts asserted by the defendant in the defence do not, in these circumstances, require the plaintiff to do more than prove the first and second loan agreements and the guarantee. It is submitted that the plaintiff may prove its case and entitlement to relief claimed inter alia in part by the admissions of the defendant in the pleadings. (Page 4)
9 Having regard to the pleadings therefore I find that the loan agreements, described as the first loan agreement and the second loan agreement, and the guarantee entered into between the plaintiff and the defendant existed as alleged and I also find that the monies referred to were indeed advanced as contemplated. 10 The funds advanced were utilised for the acquisition of real estate secured by mortgages as one would expect and it is also established that each of the properties were sold at a mortgagee sale and there was a shortfall in respect of the first loan agreement in the sum of $209,429.40 and in the second loan agreement the sum of $124,854.50. 11 By reference to the loan agreements there was an interest rate specified which commenced to accrue at the dates alleged and it is this rate that forms the basis of the calculation for interest up until the date of trial. 12 As I mentioned earlier the existence of the guarantee is admitted and the terms of it really cannot be disputed. 13 I find that demand under the guarantee has been made by the plaintiff to the defendant pursuant to the second loan agreement. 14 I also find that, in due course, default notices were duly issued and served. 15 I also find that notices of demand for payment were also duly issued and served and that no payment by the defendant was ever received. 16 Finally, I find that the calculations made of monies due together with interest so as to support the orders made at trial were duly and accurately made.
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