Westpac v Lakajev - [2000] NSWSC 603

CITATION: Westpac v Lakajev [2000] NSWSC 603

FILE NUMBER(S): SC 11453/92

HEARING DATE(S): 19/06/00, 20/06/00, 21/06/00, 22/06/00, 26/06/00, 27/06/00

JUDGMENT DATE: 27 June 2000

PARTIES :

Westpac Banking Corporation - Plaintiff
George Lakajev - First Defendant
Anna Lakajev - Second Defendant
PTL Investments Pty Limited - Third Defendant

JUDGMENT OF: Brownie AJ at 1

COUNSEL : Mr S.D. Robb QC/Mr D.R. Pritchard - Plaintiff
Mr N.L. McCaffery - Defendants

SOLICITORS: Corrs Chambers Westgarth - Plaintiff
Crichton-Brownes - Defendants

CATCHWORDS: No question of principle

CASES CITED: Henry Roach Petroleum Pty Ltd v Credit House (Victoria) Pty Ltd [1976] VR 309
Pendlebury v The Colonial Mutual Life Society Limited (1913) 13 CLR 676 at 683

DECISION: 1. Judgment for the plaintiff against the first, second and third defendants in the sum of $1,561,100.68; 2. Judgment for the plaintiff against the first and second defendants for possession of the land mentioned in paragraph 2 of the Amended Statement of Claim; 3. Leave to issue a Writ of Possession in respect of that land; 4. Dismiss the first and second cross-claims; 5. Order the defendants to pay the plaintiff's costs; 6. Stay execution for 28 days; 7. Grant leave to any part to apply, upon two days' notice to the others, if any question arises as to the calculation of $1,561.100.68.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BROWNIE AJ

TUESDAY, 27 JUNE 2000

11453/92 - WESTPAC BANKING CORPORATION v GEORGE LAKAJEV AND OTHERS

JUDGMENT
HIS HONOUR:

1    The first and second defendants, Mr and Mrs Lakajev, are shareholders in and directors of the third defendant, PTL Investments Pty Ltd. It seems that the first defendant is the sole decision maker.
2    The third defendant bought some land at Devonport, in Tasmania, in 1989 for $360,000, intending to subdivide it and resell it. So far as the evidence shows, the first defendant's prior experience was as a panel beater and he had then recently retired. The third defendant borrowed from the plaintiff the whole of the purchase price and later some further money used to enable the third defendant to develop the land. The plaintiff took as security: first, guarantees from the first and second defendants; secondly, a mortgage of the Devonport land; thirdly, a mortgage of what I take to be the home property of the first and second defendants at Mona Vale in New South Wales, and fourthly, a mortgage of another Mona Vale property from where the first defendant had been carrying on his panel beating business.
3    The Devonport land consisted of some 50 acres. It was situated near the western outskirts of the township of Devonport. The defendants' proposal involved carrying out certain development work and ultimately subdividing the land into about 170 lots in nine stages. The proposal varied from time to time and even in its original form it is not easy to grasp immediately or to describe it in words without reference to diagrams or plans. In its original form the proposal involved…

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: [2000] NSWSC 603
Decision Date: 27 June 2000

CaseChat Overview and Summary

The case involved Westpac Bank as the plaintiff and Mr Lakajev as the defendant. The dispute arose from a loan transaction between the parties, with the defendant alleged to have breached the terms of the loan agreement. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to recover the outstanding balance of the loan, along with interest and costs, from the defendant. The defendant argued that the loan agreement was void due to unconscionable conduct by the plaintiff.

The court was required to determine whether the loan agreement was valid and enforceable and if there were any grounds for the defendant to avoid the agreement on the basis of unconscionable conduct. The court also needed to decide if the defendant had breached the terms of the loan agreement by failing to make the required repayments.

The court found that the loan agreement was valid and enforceable, and there were no grounds for the defendant to avoid the agreement on the basis of unconscionable conduct. The court held that the defendant had breached the terms of the loan agreement by failing to make the required repayments. The court ordered that the defendant pay the outstanding balance of the loan, along with interest and costs, to the plaintiff. The court noted that the case did not raise any novel legal issues and was decided on the basis of established legal principles. The decision confirmed the importance of parties to a loan agreement fulfilling their contractual obligations and the courts' role in enforcing those obligations.

Orders