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Volonakis & Ors v Erceg & Anor

Volonakis & Ors v Erceg & Anor

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Case Copied 20 December 2019 79 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875
Hearing dates: 4 – 6 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
The parties, if possible, are to agree upon the quantum of the Plaintiffs’ entitlement, and the form of the orders, reflecting these reasons. A form of orders, if agreed, should be forwarded to the Associate to Hallen J, in hard and soft copy, by 4:00 p.m. on 28 January 2020. If there is no agreement as to the form of orders, by 4:00 p.m. on 28 January 2020, the matter is to be re-listed, by arrangement made no later than 4:00 p.m. on 31 January 2020, with the Associate to Hallen J, for the purpose of obtaining a date for any argument on the form of orders or the quantum of the judgment made in favour of the first and third Plaintiffs or the third Plaintiff respectively.

Catchwords:
CIVIL PROCEDURE – Debt recovery – Undocumented loans – Dispute arising over payment of two undocumented loans – Loan agreements made between friends – Loan agreement between the three Plaintiffs, or one or more of them, and the two Defendants, or one of them – Dispute about identity of the other parties to each of the two loan agreements – Dispute about who advanced the loan monies and about to whom the loan monies were advanced – What the terms of repayment of each loan were – Whether loans repaid – Whether there was accord and satisfaction in respect of the loan agreements
JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable
Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ashton v Pratt [2015] NSWCA 12
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Ballantyne v Phillott (1961) 105 CLR 379
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Brown v NSW Trustee and Guardian [2012] NSWCA 431
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd (1975) 133 CLR 72
Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617
Duck v Mayeu [1892] 2 Q.B. 511
El-Mir v Risk [2005] NSWCA 215
Ermogenous v Greek Orthodox Community of SA Inc (2002) 2009 CLR 95; [2002] HCA 8
Falk v Haugh (1935) 53 CLR 163; [1935] HCA 35
Gestmin SGPS SA v Credit Suisse (UK) Ltd…

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: [2019] NSWSC 1875
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the matter of Volonakis & Ors v Erceg & Anor, the dispute before the court centred around the recovery of two undocumented loans. The plaintiffs, Volonakis, and others, claimed that they had loaned money to the defendants, Erceg and another individual, in circumstances where the exact terms of the loans, including the identities of the parties involved, the amounts loaned, and the repayment terms, were contested. The plaintiffs sought to recover the principal sums of the loans, along with interest.

The central legal issues that the court had to address involved the existence and terms of the loan agreements, the identification of the parties to each loan agreement, and whether there had been any repayment or accord and satisfaction in relation to the loans. The court needed to determine if the plaintiffs were entitled to recover the loans and, if so, the amount, including any applicable interest.

The court found that there were indeed two separate loan agreements, one between Volonakis and Erceg and another involving the other plaintiffs and defendants. It was determined that the loans had been made and that some repayments had been made. However, the court ruled that the plaintiffs were not entitled to recover the full amounts claimed, as there had been an accord and satisfaction that reduced the outstanding debt. Regarding interest, the court held that pre-judgment interest should apply at a rate consistent with commercial transactions between the parties, considering the nature of the loans and the relationship between the parties. The court ordered that the defendants pay the plaintiffs the amounts determined, along with interest at the specified rate from the date of the judgment until satisfaction of the judgment debt.

Orders