Ristevski v Markovski

[2010] NSWDC 173

CITATION:	Ristevski v Markovski [2010] NSWDC 173
HEARING DATE(S):	10, 11 and 12 August 2010
JUDGMENT DATE:	13 August 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Judgment for the plaintiffs in the sum of $166,984.36 inclusive of interest. 2. Defendant pay plaintiffs’ costs, including the costs of the vacated hearing date of 3 May 2010. 3. Application for the 3 May 2010 hearing date to be paid by the defendant’s former solicitor refused. 4. Liberty to apply. 5. Exhibits retained for 28 days.
CATCHWORDS:	CONTRACT - breach of contract - loan to member of extended family - whether made to that person or his company
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss 286 and 596
CASES CITED:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607; (1983) 70 FLR 447; (1983) 83 ATC 4015; (1983) 13 ATR 825 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Commercial Union v Ferrcom (1991) 22 NSWLR 389 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; (1990) 93 ALR 435; (1990) 64 ALJR 412; [1990] HCA 31 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 R v Aldridge (1992) 20 NSWLR 737 R v Jovic [2008] QCA 278 R v Markovski [2009] QCA 299 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 30 July 1982)
TEXTS CITED:	Wigmore, 3rd ed (1940) Volume 2
PARTIES:	First Plaintiff: Kosta Ristevski Second Plaintiff: Jordanka Ristevski Defendant: Cecil Markovski (also known as Cele Markovski)
FILE NUMBER(S):	3863 of 2008
COUNSEL:	Plaintiffs: Mr P Barham Defendant: Mr R Johnson
SOLICITORS:	Plaintiffs: Markham Geikie Farrugia Defendant: Burt & Allen Lawyers

Judgment

Introduction

[1] The plaintiffs bring proceedings for breach of contract against the defendant arising out of the circumstances in which they assert they made a loan of $100,000 on 7 June 2002. The plaintiff and defendant are part of an extended family; the plaintiffs regard the defendant as their nephew and the defendant refers to them as “uncle” and “aunt”. The defendant has also had a longstanding friendship with the plaintiffs’ son, Zoran.

[2] The sole issue raised by the defendant in his defence is that the loan (the quantum of which is admitted) was a loan to a company of which he was a director, Tihana Group Pty Ltd, and not to him personally. In addition, although not pleaded, the defendant said in evidence that the loan was not made by the plaintiffs, but by their son, Zoran.

The circumstances in which the loan was made

[3] The circumstances surrounding the loan were as follows. In 2001, the plaintiffs took out a line of credit with the Colonial State Bank, secured by registered first mortgage on their home, to purchase a truck and contract with Visyboard Limited…