Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226

Supreme Court New South Wales

Medium Neutral Citation: Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226 Hearing dates: 21-24 February 2022 Date of orders: 8 March 2022 Decision date: 08 March 2022 Jurisdiction: Common Law Before: Gleeson J Decision: (1) Judgment for the first plaintiff against the second defendant in the sum of $2,402,069.69 comprising the principal sum of $376,200, together with interest thereon at the contractual rate of 20 per cent compounded six-monthly up until 1 March 2022 totalling $2,025,869.69. (2) Judgment for the first plaintiff against the second defendant in the sum of $171,110.96 comprising the principal sum of $150,000, together with interest thereon from 8 February 2019 to 1 March 2022 under s 100 of the Civil Procedure Act 1995 (NSW) totalling $21,110.96. (3) Judgment for the second plaintiff against the second defendant in the sum of $169,777.40 comprising the principal sum of $150,000, together with interest thereon from 8 April 2019 to 1 March 2022 under s 100 of the Civil Procedure Act 1995 (NSW) totalling $19,777.40. (4) Judgment for the third plaintiff against the second defendant in the sum of $1,639,038.29 comprising the principal sum of $260,000, together with interest at the contractual rate of 20 per cent compounded six-monthly up until 1 March 2022 totalling $1,379,038.29. (5) Dismiss the amended statement of claim against the first, third and fourth defendants. (6) Costs reserved. (7) Direct the plaintiffs to file and serve short written submissions on costs within seven days of this judgment, the defendants to file and serve short written submissions in response within a further seven days, and the plaintiffs to file and serve any short-written submissions in reply within a further five days, with the issue of costs to be determined on the papers. (8) Order that the amount of $1 million paid into court by Owen Hodge Lawyers on 16 February 2021, together with any interest thereon, be paid out of court to the first defendant. (9) Stay order 8 for a period of seven days from the date of this judgment. Catchwords: CONTRACTS – construction and interpretation - identification of parties to the agreement – use of surrounding circumstances and post-contractual conduct to identify parties – whether the first and third defendants were borrowers under the loan agreements EQUITY – unconscionable conduct – whether receipt of monies was unconscionable – whether constructive trust arising from collapse of joint endeavour or from knowledge of source of monies LIMITATION OF ACTIONS – debt – extension of limitation period by confirmation – acknowledgement in declaration – whether confirmation made by second defendant as agent for first and third defendants Legislation Cited: Civil Procedure Act 1995 (NSW), s 100 Cheques Act 1986 (Cth), s 76 Land Tax Management Act 1956 (NSW), s 3A Limitation Act 1969 (NSW), ss 11, 14, 54 Uniform Civil Procedure Rules 2005 (NSW), rr 14.4(1), 42.1 Cases Cited: Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 Barnes v Addy (1874) LR 9 Ch App 244 Barroora Pty Ltd v Provincial Insurance (Aust) Ltd (1992) 26 NSWLR 170 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Currabubula & Paola v State Bank of NSW; Currabubula v State Bank of NSW [2000] NSWSC 232 Earl of Chesterman v Jansen (1751) 2 Ves Sen 125; 28 ER 682 Hashman v Australian Medico-Legal Group Pty Ltd; Claire Lee Mosman Pty Ltd v Australian Medico-Legal Group Pty Ltd [2016] NSWSC 1773 Johnson v Brightstars Holdings Company Pty Ltd [2014] NSWCA 150 Muschinski v Dodds (1985) 160 CLR 583 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Nohra v Nando's Quality Meats Pty Ltd [2021] NSWSC 1209 Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co (1985) 4 ANZ Insurance Cases 60-843 Rasch Nominees Pty Ltd v Bartholomaeus (No 3) [2013] SASC 14 Rogers v Kabriel (No 2) [1999] NSWSC 474 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71 Young v Queensland Trustees Ltd (1959) 99 CLR 560; [1959] HCA 51 Category: Principal judgment Parties: Carlos Jose Luis Loureiro (First plaintiff) Claudio Josue Leal Meireles (Second plaintiff) Jose Carlos Reis Meireles (Third plaintiff) Mac Aus Unit Pty Ltd (First defendant) Antonio Manuel De Carvalho Conceicao (Second defendant) Patricia Do Rosario Conceicao (Third defendant) David Do Rosario Conceicao (Fourth defendant) Representation: Counsel: A C Canceri / E Bartley (Plaintiffs) M J Stevens (Defendants)