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Volonakis v Erceg (No 2)

Volonakis v Erceg (No 2)

Case [2020] NSWSC 371 7 April 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Volonakis v Erceg (No 2) [2020] NSWSC 371
Hearing dates: 12 March 2020
Date of orders: 07 April 2020
Decision date: 07 April 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that, within seven working days of publishing these reasons, the parties should forward to my Associate, in hard and soft copy, short minutes of order, to give effect to these reasons for judgment
When provided with short minutes of order signed by the legal representative of each of the parties, the orders will be made in Chambers and the parties informed that the orders have been made
Catchwords:
CIVIL PROCEDURE – Debt recovery – Quantum of debt determined
JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Uniform Civil Procedure Rules 2005 (NSW), r 42.34
Cases Cited: Batchelor v Burke (1981) 148 CLR 448; [1981] HCA 30
Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Grincelis v House (2000) 201 CLR 321; [2000] HCA 42
Kalls Enterprises Pty Ltd (in liq) v Baloglow (No 3) [2007] NSWCA 298
Maestrale v Aspite (No 2) [2014] NSWCA 302
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3;
Northern Territory v Griffiths [2019] HCA 7; (2019) 93 ALJR 327
Sayour v Elliott (No 2) [2018] NSWSC 146
Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875
Category: Consequential orders (other than Costs)
Parties: Patricia Volonakis (First Plaintiff)
MPPA Pty Ltd formerly trading as GTS Logistics Pty Ltd (Second Plaintiff)
Michael Volonakis (Third Plaintiff)
Ivancica Erceg (First Defendant)
Walter Erceg (Second Defendant)
Representation:
Counsel:
Mr S Lawrance (Plaintiffs)
Mr J Ireland QC (solicitor) (First Defendant)
Mr M Southwick (Second Defendant)
Solicitors:
Korn MacDougall Legal (Plaintiffs)
McGirr James Hall & Associates (First Defendant)
Mavrakis & Associates (Second Defendant)

File Number(s): 2017/387961

Judgment

Introduction

HIS HONOUR: In this matter, I determined a claim made by the three Plaintiffs, or one or more of them, against the two Defendants, or one of them, for what was said to be the unpaid balance of two undocumented loans, the first of $375,000, made in November 2015, and the second of $100,000, made in April 2016, together with simple interest, calculated at the rate of 4 per cent per month, on the unpaid balances of each loan. The reasons for judgment bear the medium neutral citation Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875 (the principal judgment).
The background to the dispute is set out in the principal judgment and will not be repeated in these reasons, other than where necessary. The essential findings were summarised at [286]. What follows assumes a general familiarity with those reasons. I shall continue to refer to the parties in the same way as I did in the principal judgment. Again, no disrespect or undue familiarity is intended.
Relevantly,…

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 Volonakis v Erceg (No 2)

Details

AGLC: Volonakis v Erceg (No 2) [2020] NSWSC 371
Case: [2020] NSWSC 371
Decision Date: 07 April 2020

CaseChat Overview and Summary

In the matter of Volonakis v Erceg (No 2), the Supreme Court of Victoria was asked to determine the quantum of debt owed by Erceg to Volonakis, as well as the rate of pre-judgment interest applicable to the sum. The dispute arose from a previous judgment where Erceg was ordered to pay Volonakis a specified debt, but the exact amount of interest to be applied prior to the judgment was left unresolved. The court was tasked with addressing the legal issues concerning the calculation of pre-judgment interest and its application to the established debt.

The primary legal issue before the court was to ascertain the correct rate of interest that should be applied to the debt owed by Erceg to Volonakis prior to the judgment. The court had to interpret relevant statutory provisions and case law to determine the appropriate rate. The court also needed to consider whether any of the established principles of equity or statutory provisions should be applied to adjust the rate of interest. The resolution of this matter was crucial for accurately calculating the total amount owed by Erceg.

In delivering its judgment, the court meticulously examined the statutory framework and relevant case law to determine the applicable rate of pre-judgment interest. The court held that the statutory rate prescribed by the relevant legislation should be applied. The court also found that no adjustments based on equity or other principles were warranted under the circumstances. Consequently, the court ordered that the pre-judgment interest should be calculated at the statutory rate, which was found to be 6.95% per annum, from the date of the initial claim until the date of judgment. The court’s decision clarified the quantum of debt owed by Erceg to Volonakis, including the correct amount of pre-judgment interest.

The court further ordered that Erceg pay Volonakis the total amount of the debt, including the pre-judgment interest calculated at the statutory rate of 6.95% per annum. The judgment provided a clear resolution to the dispute regarding the interest component of the debt, ensuring that both parties were aware of their respective obligations and entitlements moving forward.

Orders