Portellos v Wolf
[2002] VSC 183
•16 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7303 of 1999
| SARTORIUS PORTELLOS | Plaintiff |
| v | |
| WOLF & ORS | Defendants |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May, 10 May, 13 May, 14 May 2002 | |
DATE OF JUDGMENT: | 16 May 2002 | |
CASE MAY BE CITED AS: | Portellos v Wolf & Ors | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 183 | |
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Contract – loan of money – written agreement – evidence as to execution of and payment made pursuant to agreement, the fact that the defendant did not give evidence on trial taken into account in reaching conclusion of fact.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Klempfner | Tisher Liner & Co |
| For the Defendant | Mr G. E. Wolf | |
| For the Secondnamed Defendant | Mr M. Simon | Chadwicks - The Law Firm |
HIS HONOUR:
These proceedings were commenced by writ filed on 21 October 1999. By his statement of claim annexed to the writ the plaintiff claimed against the first and second defendant, damages in the sum of $396,976.43 together with interest on that sum at the rate of 16 per cent from 12 October 1999 until judgment. As against the second defendant the plaintiff sought an order compelling her to execute a second mortgage over an identified piece of land in favour of the plaintiff to secure payment to him of the sum of $200,000.
By the plaintiff's amended statement of claim, made pursuant to Rule 36.03(a) on 12 November 1999, he alleged that by an agreement in writing entered into between him and the defendants and executed by them, on or about 6 July 1998, he had agreed to lend to them and they agreed to borrow from him, the sum of $330,000. He alleged that pursuant to that agreement and in order to partly secure the sum of $330,000 the second defendant agreed to execute a second mortgage over the land, in the sum of $200,000.
He alleged that the first and second defendants, pursuant to the agreement, agreed to pay interest on the sum of $330,000 at a rate of 16 per cent per annum monthly in arrears from 6 July 1998 if there was default in repayment of the sum loaned. The plaintiff further alleged that in compliance with the terms of the agreement, on or about 15 July 1998, he loaned the defendants the sum of $330,000 and that on or about 6 July 1998 the first defendant executed a guarantee by which he guaranteed to the plaintiff performance by the second defendant of her obligation under the agreement.
The plaintiff alleged that he had loaned the sum of $330,000 to the defendants on 15 July 1998 by transferring that sum to an account No.03781068S/C779171 2TSB Bank PLC in accordance with the instructions of the first defendant. The plaintiff alleged that in breach of the terms of the agreement, neither defendants had repaid the sum of $330,000 or any part thereof, that they had not paid any interest on the sum loaned and the second defendant had failed to execute a mortgage in registrable form over the land. The plaintiff claimed against the defendants other relief sought by his statement of claim annexed to the writ. The plaintiff further claimed payment from the defendants of the sum of $330,000 as money had and received by them from him. Other allegations relating to the lodgement of a caveat over the land were made which are not necessary to be referred to in this judgment.
On the first day of the trial leave was given to the plaintiff to further amend his statement of claim. Pursuant to that further amended statement of claim the plaintiff alleged that in compliance with the agreement, entered into by him with the defendants, on or about 15 July 1998, he loaned to the first and second defendants $214,000. He alleged that sum was transferred by him to the aforesaid account on the instructions of the first defendant.
By the further amendment he alleged that the sum loaned, $214,000, had not been repaid nor had interest on the sum loaned at 16 per cent per annum from 15 August 1998 been paid to 8 May 2002. He claimed damages against the defendant for breach of the agreement in the sum of $341,766.79 being the sum of $214,000 not repaid and $127,766.79 interest at 16 per cent per annum from 15 August 1998 to 8 May 2002. The plaintiff pursued further remedies against the second defendant as previously referred to, together with an associated claim relevant to a caveat lodged over the land.
In proceedings brought by the second defendant against the first defendant and commenced by a "Third Party" Notice, the second defendant sought to be indemnified by the first defendant against any liability that may be found that she had to the plaintiff.
By their separate defences the defendants denied liability to the plaintiff. To the defence of the first defendant I shall hereafter refer to in more detail.
At trial the plaintiff and second defendant were each represented by counsel. The first defendant appeared. He was not represented by a legal practitioner; he conduced his own defence. On the morning of the third day of trial it was announced by counsel for the plaintiff and second defendant that the proceedings between the plaintiff and second defendant had been settled and that the proceeding of the second defendant against the first defendant had also been settled. Orders were made by consent that each of those respective proceedings be struck out without any order as to costs.
On the last day of trial and during the final address of counsel for the plaintiff, on application made on behalf of the plaintiff, it was ordered that the plaintiff have leave to further amend his statement of claim. The effect of that amendment was that rather than claiming against the first defendant, damages for breach of agreement, the plaintiff claimed repayment of the sum loaned and interest, being $314,766.79 with interest on that sum from 8 May 2002 to judgment or alternatively, he claimed damages in the sum of $214,000 together with interest according to statute.
Two witnesses gave oral evidence in support of the plaintiff's case; the plaintiff and his solicitor Goldstone. The defendant did not give evidence; no witness was called by him.
At all times relevant to these proceedings the plaintiff was, by occupation, a developer who was engaged in the construction and ownership of shopping centres in Adelaide. He also conducted a "Foodland" business. Before and at the time of the alleged agreement was entered into the plaintiff had a partner in his business activities, Stavros Pappas.
In late June or early July 1989 Pappas asked the plaintiff to lend him some money in the vicinity of $200,000. He told the plaintiff that the purpose of the loan concerned one Constantinos Atsikbasis, a person who the plaintiff did not like and who the plaintiff had prohibited from coming to one of his supermarkets because of his reputation. Pappas told the plaintiff that the reason why he required the money was that he and Atsikbasis were going to do some investments.
The plaintiff permitted Atsikbasis to come to one of his supermarkets and he was told by him and Pappas that they wanted to borrow this money from him for the purpose of making an investment which had something to do with Nigerian Banks. The plaintiff said that he was aware of some "dishonest business" involved in Nigerian schemes. No further detail was given as to the nature of the particular scheme, the subject of the request made for a loan by Pappas and Atsikbasis.
Later the plaintiff had a change of heart by reason of the difficulties that he was having with Pappas and agreed to lend the money. One of the reasons for this change of heart was that although Atsikbasis had no credibility with the plaintiff at all, he was told that an accounting firm was involved and the senior partner of the firm, by the name of Wolf, was involved with them in the business; that he was going to borrow the money, that Atsikbasis had already given him money as a contribution and that Wolf was going to put up his house as security. The plaintiff did not know either the first or second defendant. The first defendant was a practising accountant who carried on his business in Caulfield.
The plaintiff directed his business partner, Pappas, to ring Richard McNeil, his solicitor, and the solicitor who had acted for him in business affairs, to get him involved in order that everything may be done properly so far as security was concerned.
On 2 July 1998 Alan Goldstone, the plaintiff's solicitor in these proceedings, was contacted by telephone by McNeil and instructed to prepare, urgently, loan agreements and other related documents relating to a loan between parties. He was instructed that the amount of the loan was $330,000 that it was a private loan, that he would be acting for the lender and that the lender was Steve Pappas from South Australia.
On that day, Goldstone also received a telephone call from Atsikbasis who told him that he, Goldstone, could get information from Graeme Wolf, the first defendant and his wife Lydia, the second defendant, and that they were putting up security for the loan. Goldstone was told that the period of the loan was 60 days with a right to repay earlier and that the interest rate was 6 per cent payable at the end of the loan. Atsikbasis told him that the lender was himself and Pappas.
Goldstone made contact with the first defendant, Wolf, by telephone. The first defendant told him that the property which was to be provided by way of security was registered in the name of the second defendant and that the security to be put up was by way of a second mortgage over that property in the sum of $200,000. The first defendant told Goldstone that he was a certified practising accountant and that he would provide security for $130,000 against the book debts of his practice but not as against his goodwill. Goldstone understood that the first and second defendants were to be the borrowers.
On that day on a question being raised by Goldstone with the first defendant, the latter said he would contact Atsikbasis. On that day Goldstone sent an urgent letter to Atsikbasis by facsimile transmission seeking further instructions. On 3 July 1998 Goldstone received a facsimile transmission from the first defendant informing him of the particulars of the land to be the subject of the second mortgage. He also provided a copy of a bank statement showing the balance owing on 27 February 1998 under the first mortgage loan.
On 3 July 1998 Goldstone drafted a loan agreement in which it was provided that Atsikbasis and Pappas were the lenders and the first and second defendants were the borrowers pursuant to which it was agreed that the lenders would lend to the borrowers $330,000.
Goldstone sent a copy of the agreement to Atsikbasis and to the defendants. This document was also seen by the plaintiff, who informed Pappas and Atsikbasis that he was to be the lender, that the term was to be 30 days, not 60 days, as provided by the draft agreement and that there was to be default interest of 16 per cent per annum.
On 6 July 1998 Goldstone received instructions from Atsikbasis for alterations to be made to the agreement which were that the plaintiff was to be the lender, the loan period was to be reduced from 60 to 30 days and that the agreement was to provide for a default interest of 16 per cent. These instructions were received by a facsimile transmission which was received in the office of Goldstone that day at 5.05 a.m. Goldstone re-drew the agreement taking into account the instructions received from Atsikbasis.
During the morning Atsikbasis spoke to Goldstone by telephone and informed him that the loan agreement and other associated documents which had been drawn by Goldstone and relating to the loan agreement would be collected from Goldstone's office at 11.15 a.m. by a Peter Ness, that they would be taken by Ness, who would witness the execution of the documents and that the documents would be returned to his office by lunch time and that then he was to send the documents to McNeil in Adelaide. He was given further instructions as to further amendments to the documents drawn by him, including the loan agreement.
Acting on those instructions, Goldstone made amendments sought. Goldstone prepared and drew a loan agreement with a guarantee to be executed by the first defendant, a mortgage of land to be executed by the second defendant and a Certificate of Advice to be executed by a solicitor.
Goldstone wrote a letter to the defendants that day drawing attention to the alternations made to the agreement, including that it provided that the plaintiff was the lender of the sum of $330,000. He advised the defendants, inter alia, that they should seek independent legal advice before signing the documents. The letter together with three copies of the agreement and mortgage documents as drawn by Goldstone but were placed in an envelope for collection. The documents were collected from the office of Goldstone, but they were not returned to him that day or the following day. On that day, Goldstone wrote a letter to McNeil reporting to him as to the events that had happened and that the documents had not been returned to him.
The agreement drawn by Goldstone to be executed by the plaintiff as the lender, as provided in the agreement, and the defendants as the borrower, as provided in the agreement, provided inter alia that the plaintiff agreed to lend to the defendants $330,000 interest free for a period not exceeding 30 days from the date of the agreement; that the second defendant agreed to execute a second mortgage loan document with the plaintiff to secure to the plaintiff $200,000; that the first defendant agreed to submit to the plaintiff a security of book debts of his accounting practice to secure $130,000 of the loan and that the defendants agreed to pay default interest to the plaintiff at the rate of 16 per cent per annum, monthly in arrears, after the date if the loan or any part of it was not repaid.
On 14 July 1998 the plaintiff spoke to his solicitor, Goldstone. At that time he had not sighted an executed agreement and had not advanced any money as provided by the agreement as drawn by Goldstone.
At or about this time, but before 15 July 1998 the plaintiff received a telephone call from London from either Pappas or Atsikbasis, the plaintiff could not recall which. He was requested to forward the money, to be loaned by him, to an account at a bank in London, the name and account of which was given to him and noted on a piece of paper by him at the time. The name given to him was not the name of the first defendant.
The plaintiff was told by the person who spoke to him that he was in London and that the first defendant was there. The first defendant specifically did not object to this latter evidence. The plaintiff did not speak to the first defendant at this time. At this time the plaintiff did not transfer any money as requested. On 14 July 1998 the plaintiff was contacted by Atsikbasis and Pappas who informed him that the agreement had been signed and requested that the money to be loaned by him be released. He was not prepared to release the money until he had sighted the agreement and told them this.
On 15 July 1998 Pappas and Atsikbasis arrived at the plaintiff's office at a supermarket in South Australia. They had with them an agreement as drawn by Goldstone, according to the last instructions received by him as referred to previously, however, the name of Constantinos Atsikbasis had been added in handwriting to the agreement as a lender. His address in Adelaide was also stated in handwriting in the agreement.
There appeared opposite the attestation clauses in respect of the names of the first and second defendants, two different signatures. There also appeared on the same page the signature of Atsikbasis. There appeared as witnesses to these three signatures, the signature of Ness. The plaintiff also signed that document. His signature was witnessed by one of his employees. The agreement was tendered on behalf of the plaintiff and received in evidence.
On 15 July 1998, after signing the agreement, the plaintiff instructed the Bank of South Australia, which bank held a business account of the plaintiff, to transfer to a bank account in London and to the credit of the account at that bank, the particulars of which account had been given earlier by telephone to the plaintiff by either Pappas or Atsikbasis, the sum of $214,000. He said that the transfer of funds was made by him pursuant to the agreement.
The plaintiff gave evidence that a bank statement received by him from Bank of South Australia with respect to the account, against which the transfer was made, the amount of the transfer was debited against the account. He gave evidence that he had paid to this business account from his own funds, the amount debited against the business account being the amount transferred. He gave evidence that the money had not been repaid to him. I accept this evidence of the plaintiff.
I am satisfied that the plaintiff remitted the sum of $214,000 to the bank account in London as requested or directed orally on or about 14 July 1998, but before 15 July 1998, by Pappas or Atsikbasis at the time. I am satisfied that in remitting this sum the plaintiff did so in purported pursuance of his obligation as provided by the agreement that he sighted on 15 July 1998, bearing the other signatures as referred to.
On the evidence before the court this matter was the only transaction that the plaintiff had with the first or second defendant. The agreement as sighted by the plaintiff that day had been amended in writing to include the name of Atsikbasis as a lender. It is by reason of the fact that the plaintiff remitted, not $330,000 but $214,000 as requested or directed, that the plaintiff's statement of claim was amended on the day of the commencement of the trial to claim as part of the claim for damages, a sum of $214,000 as against that previously claimed in the sum of $330,000.
The question that arises in this proceeding is notwithstanding the fact that the plaintiff remitted the sum of $214,000 to the previously referred bank account in purported compliance with the agreement, was that sum in fact remitted or loaned by the plaintiff in compliance with the agreement.
The claim as finally pursued at trial was a claim against the first defendant only. The agreement relied on by the plaintiff in this proceeding and signed by him, bears a signature opposite to the attestation clause, bearing the first defendant's name. The witness Ness was not called as a witness at trial. The agreement was tendered on trial on behalf of the plaintiff. No objection was taken by the first defendant to the tender.
Although by his defence to the plaintiff's first amended statement of claim, pursuant to which he claimed against the first defendant, payment of the sum of $330,000 together with interest; the first defendant by paragraph 4 thereof did not admit the agreement and that he executed it, the further statement of facts in that paragraph are relevant to have regard to on this question. In paragraph 4 of his defence, the first defendant did not admit the allegations made by paragraph 4 of the amended statement of claim.
That paragraph of the amended statement of claim alleged:
"By an agreement in writing ... between the plaintiff and the first and second defendants executed by the first and second defendants, at the land on or about 6 July 1998, the plaintiff agreed to lend and the first and second defendants agreed to borrow the sum of $330,000 the loan agreement."
Particulars provided under that paragraph were:
"The original loan agreement is in the possession of the plaintiff's solicitors and will be produced at trial of this proceeding. The signatures of the first and second defendants on the agreement were witnessed by Mr Peter Ness."
By paragraph 4 of his defence, after not admitting the allegations in paragraph 4 of the amended statement of claim, the first defendant further stated:
"Further, any sum loaned to the first defendant was lent by the plaintiff and a Mr Constantinos Atsikbasis of 42 Kent Street, Hawthorn, South Australia (the co-lender)."
The agreement tendered as previously referred to had the name and address of that person written in handwriting in addition to the name of the plaintiff and was signed by that person. This positive assertion of fact as contained in this paragraph of the defence of the first defendant may by its terms and to the extent of the same, may be had regard to as an admission by the first defendant of such facts.
Taking this into account and having regard to the document as tendered, being on its face providing for two lenders, the plaintiff and Atsikbasis, and bearing the signature opposite that the name of the first defendant in the attestation clause, notwithstanding that Ness was not called, but further having regard to the fact that the first defendant did not give evidence on this matter as to the execution of the agreement,[1] I am satisfied that the agreement as tendered and relied on by the plaintiff was executed by the first defendant.
[1]See Jones v Dunkel (1959) 101 C.L.R. 298, O'Donnell v Reichardt (1975) V.R. 916, 292.
To the extent that in reaching this conclusion I have regard to the fact that the first defendant did not give evidence, that fact cannot be used to fill any gap in the plaintiff's case. However on the evidence before the court relevant to this matter, I am more confident to conclude that the relevant signature on the agreement tendered and relied on, was that of the first defendant. The agreement is able to be relied on by the plaintiff as containing the terms on which the plaintiff loaned any money to the first defendant if that is what he did.
The agreement contained no terms as to the means or manner by which the plaintiff should loan money to the defendants. The agreement did not contain a term that any sum loaned under the agreement by the plaintiff may be made by remitting the sum loaned to the account of the bank in London to which the plaintiff remitted the sum of $214,000.
The question to be determined next is whether by remitting that sum to the bank to the account as referred to, did the plaintiff pursuant to the agreement, loan to the defendant on 15 July 1998 the sum of $214,000? The plaintiff was directed or requested to remit that sum to the bank and to the account specified by either Pappas or Atsikbasis by the telephone conversation from London to the plaintiff. At that time the first defendant was also in London.
Both Pappas and Atsikbasis were directly involved with the first defendant in him borrowing money from the plaintiff. The first defendant was involved in borrowing money from the plaintiff. In respect of that matter it was the first defendant who referred Goldstone to Atsikbasis for him to get further particulars as to terms of the agreement. The first defendant with the second defendant became a party to the written agreement to borrow money from the plaintiff and Atsikbasis, and he executed that agreement.
Neither Pappas nor Atsikbasis were called by the plaintiff to establish that in the conversation with the plaintiff, insofar as directions or requests were made as to the means by which the plaintiff was to remit the money, one or other of them did so on behalf of the first defendant. The first defendant did not call either of them as witnesses. As stated before, he did not give evidence nor did he call any evidence on the trial.
In addressing this question, it was submitted on behalf of the plaintiff that it should be concluded that the plaintiff by remitting the money as requested, he loaned $214,000 to the first defendant and the first defendant borrowed that sum from him on 15 July 1998. Counsel for the plaintiff relied on a number of positive assertions of fact as contained in the defence of the first defendant to the amended statement of claim of the plaintiff as admissions of fact made by the first defendant from which he submitted it should be concluded that by the plaintiff remitting the sum as referred to on 15 July 1998, the plaintiff had loaned to the first defendant and he had borrowed from him that sum on 15 July 1998 pursuant to that agreement.
The positive assertions of fact made by the first defendant, as relied on by counsel for the plaintiff, were contained in a number of paragraphs of the defence of the first defendant to the first amended statement of claim. The first positive assertion of fact as relied on was that as contained in paragraph 4 of the defence as previously referred to. It was submitted that by describing Atsikbasis as a "co-lender" the first defendant admitted that insofar as Atsikbasis was a lender, he was not a joint lender with the plaintiff thereby entitling the plaintiff in this proceeding to seek to recover the sum alleged to have been loaned by him, which he sought to do by further amending his statement of claim to recover against the first defendant in part the sum of $214,000 and not $330,000.
The pleading of the first defendant was drawn by counsel and filed by the solicitor who was then representing the first defendant. The term used "co-lender" was used in my view as a term of art and used as distinct from the term "joint lender". By the use of the term, I am of the view, that it is able to give foundation to the conclusion that by paragraph 4 and by the positive assertion of fact, the first defendant admitted that if any sum of money was loaned to him it was loaned by the plaintiff and Atsikbasis as co-lenders.
The second positive assertion of fact relied on was that contained in paragraph 6 of the first defendant's defence. By paragraph 6 of the first amended statement of claim the plaintiff alleged:
"In compliance with the terms of the loan agreement on or about 15 July 1998, the plaintiff loaned the sum of $330,000 to the first and second defendant.”
There was thereunder set out the following particulars:
"On or about 15 July 1998 the plaintiff transferred $330,000 to account no. 03781068/C 7791712TSB bank PLC in accordance with the instructions of the first defendant."
That account number with the omission of the letter "S" before "/C" was the account in respect of which the plaintiff was requested to remit the money and he did so.
Although by later amendments to the plaintiff's statement of claim the sum of $330,000 as appearing in that paragraph 4 and the particulars to it, the sum of $214,000 of that was relied on by the plaintiff, it was submitted that the positive assertion made by the first defendant to that first amended statement of claim should be had regard to and could be relied on by the plaintiff in regard to this matter. In answer to paragraph 6 of the amended statement of claim the first defendant positively asserted:
"Save to say that the plaintiff and the co-lender advanced $330,000 in or about July 1998, he does not admit the allegations contained in paragraph 6".
It was submitted that the admission that the plaintiff and the co-lender had advanced $330,000 in or about July 1998, taken in conjunction with the other facts constituted an admission that the plaintiff had advanced moneys, and it should be concluded that the advance made by the plaintiff of $214,000 was made by way of a loan to the first defendant pursuant to the agreement.
The first defendant submitted that there was no evidence that he ever received the money or that he received the benefit of money, or that the money was actually paid. For the reason previously expressed I am satisfied that the plaintiff paid the sum of $214,000 on 15 July 1998 and that he paid it pursuant to the agreement.
The first defendant's admission that the plaintiff and the co-defendant advanced $330,000 in or about July 1998, when taken into account with the fact that the agreement as executed, provided for the plaintiff and Atsikbasis to lend $330,000 and the fact that on 15 July 1998 the plaintiff advanced by way of remission $214,000 and that this, on the evidence, was an isolated dealing by the plaintiff with the first defendant; I have concluded that the advance by the plaintiff of $214,000 was part of the advance that had to be made by loan under the agreement by the plaintiff and Atsikbasis.
Having regard to the evidence in this case it could not be said that Pappas and Atsikbasis were either in the camp of the plaintiff or the first defendant. In such circumstances the fact that neither the plaintiff or first defendant called them as witnesses relevant to this issue can be of no assistance in determining this issue.
The contention of the first defendant that there was no evidence that he ever received that money or that he received the benefit, does not advance his case. The agreement did not provide that the money to be loaned was to be paid to him or a particular person direct. There are many commercial dealings where an agreement to loan money to a person may be satisfied by the lender paying the money to another person at the direction of the borrower. There are many commercial dealings, when at the end of the transaction, it cannot be said that the borrower actually received a benefit.
The evidence before the court in this case does not enable me to determine whether or not the first defendant received any benefit from the loan made to him by the plaintiff, if that was what occurred by the plaintiff remitting the sum of $214,000 to the account at the bank in London, to which I have previously referred.
As referred to, on the evidence before the court the dealing of the plaintiff with the first defendant was an isolated dealing. He was prepared to loan money to the first defendant on it being represented by Pappas and Atsikbasis to him that the first defendant would be the borrower and would provide security. It was then that the first defendant provided to Goldstone particulars of matters relevant to him drawing a loan agreement and security documents.
For the reason stated, I am satisfied that the first defendant executed the agreement, pursuant to which the plaintiff agreed to lend the money to the first defendant and second defendant and they agreed to borrow it.
The communication with the plaintiff as to where the money was to be remitted was made to the lender, the plaintiff, by either Pappas or Atsikbasis. Each of these persons were directly involved with the first defendant in having the plaintiff enter into the loan agreement for him to lend money to the first defendant. By the agreement Atsikbasis was in part also a lender of the total sum of money, the subject of the agreement.
On this matter I also take into account the fact that the first defendant did not give evidence. Although that fact cannot fill any gap in the plaintiff's case, if a conclusion of fact is able to be drawn from the evidence before the court in support of the plaintiff's case as to this matter, such conclusion can be more readily drawn in the absence of the first defendant giving evidence on the matter known to him. On this matter I take into account the positive assertions of fact by the first defendant in his defence by way of admissions against him.
Taking these matters into account I have reached the conclusion that the payment made by the plaintiff of $214,000 on 15 July 1998 by remitting that sum to the bank account, as previously referred to, was made by the plaintiff pursuant to the agreement and it was an advance made by one of the co-lenders pursuant to the agreement and it constituted a loan by the plaintiff to the first defendant pursuant to the agreement as executed by him.
Accordingly, pursuant to the terms of the agreement, the first defendant was obliged to repay that sum to the plaintiff within 30 days of 15 July 1998. That was not done and has not been done, nor has any payment been made to the plaintiff in part repayment of the sum of $214,000 loaned by him to the first defendant pursuant to the agreement.
The plaintiff is entitled to recover against the first defendant $214,000 together with interest to this day from 15 August 1998 at the rate of 16 per cent per annum. That period of time is 1,371 days. The interest calculated at the relevant rate for that period of time is $128,611.06.
On the plaintiff's claim against the first defendant there will be judgment for the plaintiff against the first defendant in the sum of $342,611.06 and it is ordered that the first defendant pay to the plaintiff the sum of $342,611.06.
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