Fanshil v Akman [2020] NSWDC 393

District Court New South Wales

Medium Neutral Citation: Fanshil v Akman [2020] NSWDC 393 Hearing dates: 7, 8 and 15-17 July 2020 Date of orders: 7 August 2020 Decision date: 07 August 2020 Jurisdiction: Civil Before: Smith SC, DCJ Decision: 1. Judgment for the plaintiff in the amount of $673,617.87 including interest. 2. Costs as agreed or assessed. Catchwords: MERCANTILE Law – Other – unrepaid loan for property development – undocumented loan or "investment" between extended family members – defended on falsehoods – credibility of witnesses Cases Cited: Fox v Percy (2003) 214 CLR 118 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 Pacific Carriers v BNP Paribas (2004) 218 CLR 451 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Anatoly Fanshil (Plaintiff) Alaxander Akam (also known as Alexander Akam) (Defendant) Representation: Counsel: Mr D Krochmalik (Plaintiff) Mr A Gruzman (Defendant)

Solicitors: StevensVuaran Lawyers (Plaintiff) Comino Prassas Lawyers (Defendant) File Number(s): 2019/347262 Publication restriction: Nil

Judgment 1. It is well known that it is imprudent to lend money to friends and family. The risk is that the lender will lose both money and friend or family. [1] Of course, even if that risk is ignored, ordinary prudence would at least drive most people to record the fact, and terms, of the loan. In his case, the plaintiff says that he was imprudent on both counts: he lent roughly $378,000 to his step-son's father-in-law and made no record of it. He is now before the Court because, as accepted wisdom might have warned him, the loan was not repaid and the family has fallen out. 2. The defendant says there was no loan from the plaintiff: he was given money to pay for the son's-in-law share of a property he wanted to develop. Apart from the usual registration of that interest, the dealing by which that is said to have occurred was not recorded in writing. 3. The issues are, put bluntly, whether the plaintiff was merely imprudent and has been cheated by the defendant, or whether the plaintiff is a liar. For the reasons that follow, I have concluded that the plaintiff may have been foolish, but he is no liar. The defendant owes the plaintiff the amount loaned, interest and other amounts he promised to pay the plaintiff on certain contingencies occurring.