Toumazou v Toumazou - [2002] VSC 258

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 5907 of 1998

KYRIACOS TOUMAZOU	Firstnamed Plaintiff
and
PARKLANDS DEVELOPMENT PTY LTD (ACN 074 934 348) (IN ITS CAPACITY AS TRUSTEE OF THE K & V TOUMAZOU FAMILY TRUST)	Secondnamed Plaintiff
v
VATHOULLA EVRIPIDOU TOUMAZOU MICHAEL GEORGIOU LARNACA HOLDINGS PTY LTD GRENADIER TOWER PTY LTD JELENA CLOSE PTY LTD MAROULLA GEORGIOU REDATA PTY LTD PANACHE DEVELOPMENTS PTY LTD, LEON KYRIACOU AND CTS HOMES PTY LTD	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29-31 MAY; 3-7, 11-13 JUNE; 25 JULY 2002
DATE OF JUDGMENT:	2 AUGUST 2002
CASE MAY BE CITED AS:	TOUMAZOU & ANOR v TOUMAZOU & ORS
MEDIUM NEUTRAL CITATION:	[2002] VSC 258

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CATCHWORDS: Loan agreements – Account stated - Alleged forgery – Fraud - Misrepresentation – Unconscionability – Unjust enrichment – Trust assets.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I. Upjohn	Bernstein & Associates
For the Defendants	Mr G. Lucas	Andrew T. Fraser & Associates

HIS HONOUR:

This proceeding arises out of property development ventures undertaken by the firstnamed plaintiff ("the husband") and the firstnamed defendant ("the wife") through the vehicle of a family company TVK Homes Pty Ltd ("TVK"). It is concerned in particular with property development and loan arrangements entered into by the husband and TVK with the secondnamed defendant ("Georgiou"), who is the wife’s brother-in-law, and with a series of companies associated with him.

The husband and the wife emigrated from Cyprus to Australia in the late 1970s. They were married on 26 April 1980. They separated on 26 May 1996.

The proceeding started its life as proceeding No. DG4444 of 1996 in the Family Court of Australia. The husband began proceedings in the Family Court of Australia in November 1996 for interim relief and on 19 December 1997 applied for a divorce. The husband obtained leave in those proceedings to bring a claim in the cross-vested jurisdiction of the Family Court of Australia. The Re Wakim decision[1] necessitated the transfer of the proceedings to the Supreme Court of Victoria.
[1](1991) 198 CLR 571

The husband and the wife were divorced on 5 March 1998. The proceeding before me can in a broad sense be characterised as it was by counsel for the plaintiffs as a "commercial divorce". If the proceeding is so characterised it can be observed that it is not brought on a "no fault" basis; it is founded in allegations of breach of contract with respect to a complex series of agreements, and is further founded in allegations of misrepresentation, forgery, misleading and deceptive conduct, fraud, unconscionability and unjust enrichment.

There are two plaintiffs and 10 defendants, although the eighth defendant has been deregistered and the proceeding discontinued against it. The parties and their relationships are summarised in the following table:

Name

Party

Relationship

Kyriacos Toumazou

Firstnamed Plaintiff

Ex-husband of firstnamed Defendant. Sole director of secondnamed Plaintiff.

Parklands Development Pty Ltd

Secondnamed Plaintiff

Trustee of the K & V…

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.

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Details

Case: [2002] VSC 258
Decision Date: 2 August 2002

CaseChat Overview and Summary

In the case of Toumazou v Toumazou, the primary dispute involved the validity and enforcement of certain loan agreements, the existence of an account stated, allegations of forgery, fraud, misrepresentation, unconscionability, unjust enrichment, and the disposition of trust assets. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the loan agreements were validly executed, whether there was an account stated between the parties, whether the plaintiff had been fraudulently induced to enter into the agreements, whether the defendant had made misrepresentations, whether the agreements were unconscionable, and whether there had been unjust enrichment by the defendant. Additionally, the court had to determine the proper disposition of certain trust assets.

The court, in its judgment, found that the loan agreements were valid and enforceable, dismissing the claims of forgery and fraud. The court held that the plaintiff had failed to provide sufficient evidence to substantiate these allegations. Regarding the account stated, the court found that there was no evidence to support the plaintiff's claim. The court also ruled that the plaintiff had not been induced by misrepresentation and that the agreements were not unconscionable. The court found no basis for a claim of unjust enrichment. Finally, the court addressed the disposition of trust assets, determining that certain assets were to be returned to the trust.

The court ordered that the loan agreements be enforced as per their terms, that no account stated existed, and that the trust assets be returned to the trust. Further, the court dismissed the plaintiff's claims of forgery, fraud, misrepresentation, unconscionability, and unjust enrichment.

Orders