Zirpiadis v Alexiadis - [2012] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ZIRPIADIS v ALEXIADIS
[2012] SADC 89
Judgment of His Honour Judge Millsteed
2 July 2012
RESTITUTION
Action for recovery of moneys by plaintiff to the defendant - dispute as to purposes for which moneys were advanced - dispute as to whether moneys were repaid as asserted by defendant - held that moneys were advanced for purposes different to those alleged by the parties - held that defendant was obliged to repay the moneys - held that defendant had failed to repay moneys - held that moneys were recoverable as money had and received.
Walton v The Queen (1989) 166 CLR 283; Young v Queensland Trustees Limited (1956) 99 CLR 560; R v Russell [1933] VR 59; R v Phan (2001) 53 NSWLR 480; Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 at 256-257; R v Giorgianni (1985) 156 CLR 473; Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (19898) 164 CLR 662; Lloyd v Hayes (1986) 40 SASR 401; Wu v SA Police (SCSA) 9 May 1994, Jud No S4560, unreported; Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221; Equuscorp v Pty Ltd v Haxton (2012) 86 ALJR 296; Roxborough v Rothman's of Pall Mall Australia Ltd (2001) 208 CLR 516, considered.

ZIRPIADIS v ALEXIADIS
[2012] SADC 89
INTRODUCTION

The plaintiff, Caralos Zirpiadis, has brought an action against the defendant, Nick Alexiadis, for the recovery of money.
It is the plaintiff’s case that on 22 November 2002 he advanced to the defendant two sums of money comprising a loan of $8,251.99 to enable the defendant to establish a commercial olive grove on his property at Black Hill and $50,000 to be used by the defendant to pay for the plaintiff’s medical treatment. The plaintiff further contends that on 23 December 2003 he gave the defendant another loan in the amount of $37,000 so that he could pay off various debts he had incurred. The plaintiff claims that the defendant failed to use each sum of money for the purposes for which it was advanced and has repaid only $5,000. He now seeks to recover the balance of $90,251.99. The defendant agrees that he received each sum of money but denies that it was advanced for the purposes alleged by the plaintiff and, more significantly, contends that he has repaid all of the moneys.
PROCEEDINGS
On 20 November 2008 the plaintiff by his then solicitors, Richards Commercial Lawyers (Richards), issued a Summons and filed a Statement of Claim (SOC) against the defendant. The plaintiff was represented by Richards during pre-trial proceedings but was unrepresented at trial. On the trial the plaintiff gave evidence and tendered documents.[1] No witnesses were called by him. The defendant, who was represented by Mr G. Dart of counsel, gave evidence and called two witnesses, Ms Marie Tanski and Mr Terry Turner.
[1] In examination-in-chief the plaintiff adopted, with the consent of the…

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.

Keep reading for free

Create a free CaseChat account to read Zirpiadis v Alexiadis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] SADC 89
Decision Date: 2 July 2012

CaseChat Overview and Summary

This matter involved a claim by the plaintiff, Carlos Zirpiadis, against the defendant, Nick Alexiadis, for the recovery of moneys advanced to him by the plaintiff on three separate occasions in 2002 and 2003. The key issues were whether the moneys were advanced for the purposes alleged by the plaintiff and, critically, whether the defendant repaid the moneys as alleged by the defendant. The defendant conceded that where money was advanced and the defence of repayment was raised, the onus of proving payment lies upon the defendant. The resolution of each issue hinged on an assessment of the credibility and reliability of the witnesses. The plaintiff's evidence in relation to the purposes for which he advanced money to the defendant was rejected. His evidence did not accord with other evidence or with inferences that could reasonably be drawn from the evidence. The plaintiff's evidence that he advanced $50,000 to pay for his medical treatment and a loan for $8,251.99 to enable the defendant to establish an olive grove at Black Hill was rejected. The plaintiff's assertion that he gave the defendant a loan for $8,251.99 to establish an olive grove was also rejected. The defendant's account of the reasons for which he received $58,291 from the plaintiff in 2002 was also rejected. The defendant has failed to establish that he repaid to the plaintiff the money which he received from him in 2002. The plaintiff was satisfied that the defendant had failed to repay the money he received from the plaintiff in 2002. The defendant has failed to repay the money advanced except for a payment of $5,000 made on his behalf by his wife in April 2004. The defendant's unjust enrichment gives rise to a prima facie obligation to make restitution. On the evidence before the Court, there were no defences available to the defendant that would make an order for restitution unjust. Judgment for the plaintiff in the sum of $90,251.99 with interest was awarded.

Orders