PF Mascaro Pty Ltd atf PFM Family Trust v Holland
[2025] NSWDC 223
•20 June 2025
District Court
New South Wales
Medium Neutral Citation: PF Mascaro Pty Ltd atf PFM Family Trust v Holland [2025] NSWDC 223 Hearing dates: 21 May 2025 Date of orders: 21 May 2025 Decision date: 20 June 2025 Jurisdiction: Civil Before: Cole DCJ Decision: (1) Judgment in favour of the plaintiff for the sum of $238,257.36.
(2) Defendant to pay the plaintiff’s costs of proceeding.
(3) Order the plaintiff to notify the defendant of these orders by letter sent to the defendant’s address for service, to be posted on or before Friday 23 May 2025.
(4) With the intention that any entitlement of the defendant to set aside these orders be preserved if there exists good cause for his absence today, entry of these orders to be stayed for 28 days.
Catchwords: CONTRACTS — Breach of contract — Consequences of breach
Legislation Cited: Uniform Civil Procedure Rules 2006
Category: Principal judgment Parties: PF Mascaro Pty Ltd atf PFM Family Trust (Plaintiff)
Bradley Reginald Holland (Defendant)Representation: Counsel:
R Scheelings (Plaintiff)
Solicitors:
ICL Lawyers (Plaintiff)
File Number(s): 2024/248185 Publication restriction: Nil
JUDGMENT
-
The plaintiff seeks liquidated damages from the defendant in relation to the alleged failure of the defendant to make all of the payments of principal and interest that he was bound to pay to the plaintiff under a loan agreement.
-
The defendant filed a defence in the matter. He was represented by Petherick Cottrell Lawyers, a firm based in Western Australia who remain the solicitors on file.
-
The defendant did not appear at the trial on 21 May 2025 and neither did any representative appear on his behalf.
-
An affidavit of Mr Paul Taylor, solicitor for the plaintiff, sworn on 21 May 2025, was read. Mr Taylor telephoned Petherick Cottrell Lawyers on 7 April 2025 and drew their attention to the date for hearing. An email exchange ensued, following which Mr Taylor received an email from Mr Petherick on 16 May 2025 which says:
Our client is now either self-representing, or engaging a NSW lawyer, and he will be in contact over an adjournment.
-
Mr Taylor has heard nothing further from Petherick Cottrell Lawyers or from the defendant.
-
No application for an adjournment of the trial has been made. No explanation has been given for the defendant’s failure to appear.
-
The defendant last appeared at a directions hearing in this matter on 17 December 2024, by telephone. He did not appear at the directions hearings of 12 February 2025 and 27 March 2025. The defendant was notified of the orders made at those directions hearings, including the date for the trial.
Rule 29.7 of the Uniform Civil Procedure Rules 2006
-
The plaintiff requested that the matter proceed under r 29.7(3) of the Uniform Civil Procedure Rules 2006 (‘UCPR’). Rule 29.7 provides, relevantly:
29.7 Procedure to be followed if party is absent
(1) This rule applies when a trial is called on.
(2) If any party is absent, the court—
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of—
(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and
(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.
-
The matter proceeded under r 29.7(3) of the UCPR.
Facts
-
In 2019, Mr Peter Mascaro, who was, at the time, the sole director of the plaintiff, entered into an arrangement with the defendant whereby the two men were to arrange for the purchase of Peel Zoo Pty Ltd (the principal asset of which was a zoo in Western Australia) through a company owned by them called Redz Zoo Pty Ltd.
-
A suite of documents was prepared to implement the arrangement. Among them was a draft Loan Agreement between the plaintiff, as the lender, and the defendant, as the borrower (see CB pp 162 and 207).
-
The draft Loan Agreement provided for the plaintiff to lend to the defendant the sum of $300,000 for a term of three years. The interest rate provided for was 10% per annum, with interest payments to be made periodically and the principal to be repaid on the third anniversary of the loan.
-
The defendant signed the draft Loan Agreement on 2 September 2019. The preamble to his signature says that he is signing as a director of Redz Zoo Pty Ltd, but it is clear that this was a drafting error. The title page of the draft Loan Agreement, and Schedule 1, which sets out the parties and the terms of the loan, make it plain that the defendant, personally, was the borrower. On 2 September 2019, the defendant signed a document entitled “Acknowledgement and Acceptance by Borrower” in which he acknowledges that he has accepted the offer of the loan from the plaintiff and was “aware of its obligations and liabilities under the Letter of Offer and Terms Sheet”.
-
The plaintiff did not sign the draft Loan Agreement. He did, however, advance $600,000 for the purchase of Peel Zoo Pty Ltd, half of which was on his own behalf and the other half of which was on behalf of the defendant, and constituted the principal sum of the loan. The plaintiff paid a deposit on 19 June 2018 and paid the balance in tranches from 31 August 2019 to 5 September 2019 (see CB pp 79-80).
-
For two and a half years from the advance of the funds, the defendant made the interest payments agreed between the parties on the basis of a principal sum of $300,000.
-
Clearly, both parties considered themselves to be bound by the terms of the draft Loan Agreement and took steps accordingly. Both parties were bound by the contract between them.
-
Mr Mascaro died on 15 October 2021 (CB p 367).
-
The defendant did not make any further interest payments after 31 January 2022, notwithstanding that the principal sum was not due for repayment until 5 September 2022. The defendant failed to repay the principal sum on 5 September 2022.
-
Periodic demands for payment have been made to the defendant on behalf of the plaintiff since the defendant failed to fulfil his obligations under the contract.
-
On 5 July 2024, the plaintiff filed a Statement of Claim suing the defendant for breach of contract and seeking the repayment of the principal sum due under the contract and the unpaid interest.
-
On 6 August 2024, the defendant filed a Defence. In the Defence, the defendant admits that he made fortnightly payments of $1,153.85 from September 2019 (paragraph 8). The defendant also admits that “the rate of interest on the outstanding balance prescribed by the loan agreement is 10%” and further pleads that, on 10 May 2021, he paid Mr Mascaro “in his capacity as a director of the plaintiff” the sum of $120,000 in cash (paragraph 10).
-
At the hearing on 21 May 2025, the plaintiff sought an order for an amount which was $120,000 less than the principal sum to accommodate the defendant’s pleading in paragraph 10 of the Defence, without admission.
-
Mr Taylor provided an affidavit sworn on 21 May 2025, in which he calculated the liquidated damages, comprising the unpaid interest of $60,680.65 plus the unpaid principal sum of $177,576.71 (being $300,000 minus $120,000 = $180,000 minus interest overpaid in years one and two). The total liquidated damages claim is therefore $238,257.36.
Conclusion
-
The plaintiff has established an entitlement to the award of damages sought.
-
I made the following orders at the hearing:
Judgment in favour of the plaintiff for the sum of $238,257.36.
Defendant to pay the plaintiff’s costs of proceeding.
Order the plaintiff to notify the defendant of these orders by letter sent to the defendant’s address for service, to be posted on or before Friday 23 May 2025.
With the intention that any entitlement of the defendant to set aside these orders be preserved if there exists good cause for his absence today, entry of these orders to be stayed for 28 days.
**********
Decision last updated: 20 June 2025
0
0
1