Trpkovski v Russell

Case [2001] FCA 1871

FEDERAL COURT OF AUSTRALIA

Trpkovski v Russell [2001] FCA 1871

SASHA TRPKOVSKI & ANOR v LYNN RUSSELL & ANOR
A 73 of 2000

SASHA TRPKOVSKI & ANOR v LYNN RUSSELL & ANOR
A 76 of 2000

HIGGINS, GYLES & STONE JJ
DATE            21 December 2001
CANBERRA


GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

A 73 OF 2000

CANBERRA DISTRICT REGISTRY  A 76 OF 2000

DISTRICT REGISTRY  

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SASHA TRPKOVSKI

FIRST APPELLANT

LOU BUJAROSKI

SECOND APPELENT

AND:LYNN RUSSELL and COLIN DOUGLAS PITSON

RESPONDENTS

JUDGES:HIGGINS, GYLES and STONE JJ

DATE OF ORDER:  21 DECEMBER 2001

PLACE:CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed, save that the respondents pay the costs of the day thrown away by the adjournment of the hearing on 24 November 1999.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 73 OF 2000
A 76 OF 2000

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 73 OF 2000
A 76 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

SASHA TRPKOVSKI
FIRST APPELLANT

LOU BUJAROSKI
SECOND APPELLANT

AND:

LYNN RUSSELL and COLIN DOUGLAS PITSON
RESPONDENTS

JUDGE:

HIGGINS, GYLES & STONE JJ

DATE:

21 DECEMBER 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT

HIGGINS J:

  1. I have had the advantage of having read in draft the judgments of both Stone J and Gyles J.

  2. I agree with Stone J that, on its true construction, Special Condition 1 provided that the monies payable under it were payable as a deposit ie, an earnest for performance.  Otherwise, of course, the reference to the 5% of the price payable on or before completion would be otiose unless it was payable as part of the deposit.  At completion, the whole of the price remaining was due and payable whether part of the deposit or not.

  3. The terms of Special Condition 1, I also agree, create, on breach, an obligation upon the purchaser under each agreement that is, within the meaning of O 2 r 11 of the Supreme Court Rules, a “debt or a liquidated demand”, in respect of which final judgment may be entered in default of appearance or of defence, as the case may be (see also O 14 r 4; O 31 r 2).

  4. It then follows that the contract of guarantee, upon default by the purchaser (Adwan P/L) required the payment by the guarantors (the first and second appellants), of, in each case, a liquidated sum equal to the deposit reserved by Special Condition 1.

  5. As to interest thereon, pre-judgment, I agree with Stone J and have nothing to add.

  6. On the questions of costs, however, the issue is whether the fact that the contracts were unstamped required the appellants, if they proposed to rely upon that fact, to have pleaded it.  If it was a mere objection to the admission of evidence, then it was…

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AGLC
Trpkovski v Russell [2001] FCA 1871
Case
[2001] FCA 1871
Decision Date

CaseChat Overview and Summary

In the matter of Trpkovski v Russell, the dispute arose from an exchange of contracts for the sale of property, where a cheque intended for the sale deposits was dishonoured. The Vendors, Trpkovski and Bujaroski, subsequently terminated the sale and sought to recover the deposits from the Guarantors. The Supreme Court of the Australian Capital Territory had entered a default judgment against Adwan, and the primary judge found that the Guarantors were liable for the deposits and interest until the date of the adjourned hearing. The Guarantors appealed, arguing that the primary judge misinterpreted the agreements and the guarantees, but their appeal was dismissed.

The legal issues before the court involved the interpretation of the sale agreements and guarantees, and the extent of the Guarantors' liability under these documents. Specifically, the court had to determine whether the primary judge correctly assessed the Guarantors' obligations and the Vendors' entitlements following the dishonour of the cheque and the subsequent termination of the sale. The Guarantors contended that the primary judge had erred in his interpretation, but the appellate court found no merit in this argument. The court's reasoning focused on the clear terms of the agreements and guarantees, which unequivocally placed the liability on the Guarantors for the deposit amounts and interest, as determined by the primary judge.

The appellate court held that the primary judge's interpretation of the agreements and the guarantees was correct and that the Guarantors' liability stood as determined. The court found no basis to alter the primary judge's conclusions. The appeals were dismissed, and the court ordered that the respondents bear the costs of the adjourned hearing date. The decision affirmed the primary judge's assessment of the Guarantors' obligations and the Vendors' entitlements, rejecting the appeal on the basis that no error was found in the original judgment.

Orders

Orders of the court

1. The appeal be dismissed, save that the respondents pay the costs of the day thrown away by the adjournment of the hearing on 24 November 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On exchange of contracts, a cheque payable to Raine and Horne Manuka Trust Account was provided (being the stakeholders pursuant to the three agreements) for $11,500, being the amount due under the three agreements at exchange (1 per cent of the purchase price in each agreement). That cheque was dishonoured on presentation by the payee on 22 October 1993. On 2 December 1993, no money having been paid, the Vendors served notices of termination on Adwan. Subsequently, on 21 July 1997 and possibly also on 15 January 1996, they demanded payment of the three deposits from Adwan and the Guarantors.DECISION AT FIRST INSTANCE Because Adwan had not entered an appearance in the Supreme Court of the Australian Capital Territory, default judgment was entered against it. There is no appeal against this judgment. The primary judge considered the liability of the Guarantors. His Honour held that the Guarantors were liable to pay to the Vendors the amount to which the Vendors were entitled as against Adwan, being the total of the deposits under the three agreements plus interest from the date of the notices of termination until 24 November 1999, being the date on which the matter was initially listed for hearing. The hearing scheduled for 24 November 1999 was adjourned because the Vendors failed to ensure that their evidence was in admissible form. The problem was that the agreements had not been stamped as required by Stamp Duties and Taxes Act 1987 (ACT) and, by virtue of s 13A of that Act, could not be pleaded or given in evidence. The hearing was adjourned to enable the stamping obligations to be met. For that reason the primary judge held that the Vendors were not entitled to interest after 24 November 1999. His Honour also held that, as all parties had ignored the provisions of s 13A of the Stamp Duties and Taxes Act 1987 (ACT), it was appropriate that they all bear their own costs of the adjournment. With this exception, however, his Honour ordered the Guarantors to pay the Vendors’ costs. NOTICES OF APPEAL A notice of appeal (proceedings A 73 of 2000) was filed on behalf of Trpkovski citing both Trpkovski and Bujaroski as appellants and the Vendors as respondents. A second notice of appeal (proceedings A 76 of 2000) was filed on behalf of Bujaroski, citing Bujaroski as the appellant and the Vendors, Trpkovski and Adwan as respondents. This slightly confusing arrangement was regularised at the hearing, when it was ordered that, in both matters, Trpkovski would be known as the first appellant and Bujaroski as the second appellant. The proceedings have been discontinued as against Adwan, leaving the Vendors as the only respondents in both appeals. GROUNDS OF APPEAL The Guarantors both appeal from the whole of the judgment at first instance. It is not necessary to set out the grounds of appeal. Together they amount to a claim that the primary judge erred in his interpretation of the agreements and the guarantees and thus drew incorrect conclusions as to the Vendors’ entitlements and the Guarantors’ obligations. In my opinion his Honour was correct in his conclusions. It will be sufficient for present purposes if I explain my reasons for this view and deal with the submissions made on behalf of the Guarantors in that context. Although Mr Arthur, counsel for Bujaroski, and Mr McKeown, counsel for Trpkovski, approached the matter differently, they each adopted the other’s submissions. Accordingly it is not necessary for me to deal with their submissions separately.Unpaid deposit

Ratio Decidendi

Legal Principle Established

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