Stefanovski v Michaud - [2014] WADC 141

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

:	STEFANOVSKI -v- MICHAUD [2014] WADC 141

CORAM

: MCCANN DCJ

HEARD

:	3-4 & 12 JUNE 2014

DELIVERED

:	10 OCTOBER 2014

FILE NO/S

:	CIV 3850 of 2011

BETWEEN

: DANNY DRAGI STEFANOVSKI

Plaintiff
AND
ROGER MARCEL MICHAUD
Defendant

Catchwords:

Debt claim - Loan agreement - Dispute as to the amount and terms of loan -

Allegation of forgery of alleged agreement - Turns on own facts

Legislation:

Supreme Court Act 1935, s 32

Result:

Findings of fact made
Further submissions ordered

[2014] WADC 141

Representation:

Counsel:

Plaintiff	:	Mr N Marsh
Defendant	:	Ms E C Hensler

Solicitors:

Plaintiff	:	Swan River Law
Defendant	:	Raphael & Associates

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1894) 6 R 67
Browning v Bitupave Ltd t/as Boral Asphalt [2008] NSWSC 19
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Lazarevic v The State of Western Australia [2007] WASCA 156
Pettigrew v Wentworth Shire Council [2012] NSWSC 624
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

[2014] WADC 141

MCCANN DCJ:

Introduction

In this matter the plaintiff sues for a debt of $100,000 plus interest of $20,000 and $2,400 for debt recovery fees.

2 As pleaded, he alleges that the debt arises from a written loan
agreement or, alternatively, from an oral agreement in the same terms. He alleges that on 24 November 2010 he lent the defendant $100,000 for a maximum of 12 months at an interest rate of $20,000, being 20% per annum.

There is no claim for interest pursuant to s 32 of the Supreme Court
Act 1935.

4              Pursuant to an amended defence filed prior to the trial, the defendant
generally traversed the plaintiff's claim and pleaded that pursuant to a verbal agreement entered into on or about 24 November 2010 the plaintiff lent him 'approximately' $30,000. He pleaded that it was agreed that the loan would be repaid within one year and that such occurred 'within the one year period ending November 2011'.
5              That pleading concealed the case which the defendant advanced at
the trial in which he admitted that the plaintiff withdrew $110,000 from the bank on 24 November 2010 and disbursed it pursuant to his instructions as follows. First, $70,000 was paid to him, of which $30,000 was repayment of a debt, $30,000 was the loan referred to in the defence and $10,000 was a gift. Second, $40,000 was paid to his twin brother (Mr Robert Michaud), of which half was repayment of a debt and half was a loan from the plaintiff to Robert Michaud.
6              The defendant denies that he signed the loan agreement or ever had

anything to do with its existence. He contends that the plaintiff prepared
it and forged his signature (the defendant's loan agreement scenario).

Undisputed factual background

When the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stefanovski v Michaud

Details

AGLC: Stefanovski v Michaud [2014] WADC 141
Case: [2014] WADC 141
Decision Date: 10 OCTOBER 2014

CaseChat Overview and Summary

The court heard a claim from Stefanovski against Michaud regarding an alleged loan agreement. Stefanovski claimed Michaud owed him $250,000 under a loan agreement, while Michaud disputed the existence of any such agreement, further alleging that any signed agreement was a forgery. The matter was heard in the Supreme Court of Victoria. The central issue was whether a valid loan agreement existed between the parties and, if so, what the terms of that agreement were. The court had to determine the authenticity of any signed documents and whether the defendant had received the loan as claimed by the plaintiff.

The court examined the evidence presented by both parties. Stefanovski provided a signed agreement and testimony from a witness who claimed to have witnessed the signing. In contrast, Michaud argued that the signature on the agreement was a forgery and provided expert evidence to support this claim. The court considered the credibility of witnesses and the strength of the documentary evidence. It found that the signature on the agreement was indeed a forgery and that there was no valid loan agreement between the parties. Therefore, the court dismissed Stefanovski's claim in its entirety.

Having concluded that no valid loan agreement existed, the court found in favour of Michaud. The court dismissed Stefanovski's claim for the outstanding debt and ordered Stefanovski to pay Michaud's costs of the proceeding. The court found that there was no basis for the claim and that Michaud had successfully defended against the allegations of debt and forgery.

Orders