OFRIA v MICALLEF and ANOR [1998] NSWCA 166

OFRIA v MICALLEF

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

STEIN and GILES JJA and FITZGERALD AJA 4 November 1998, 4 November 1998

[1998] NSWCA 166

CONTRACT — loan agreement — trial judge's conclusion (adverse to appellant) based on her assessment of the credibility of witnesses — no justification for this Court's interference with that conclusion.

Fitzgerald AJA In April 1984 the respondents made a loan of $8000 to the appellant. A further loan of $4700 was made in May 1984, and a further loan of $4000 was made in July 1984. Each of the loans was repayable with interest. Another loan of $8000 was made by the respondents to the appellant on or about 24 October 1985, when the respondents paid the full deposit of $16,000 in respect of a contract by the respondents and the appellant and his wife as joint purchasers of a property at Rosebery, which was subsequently rented to the appellant and his wife. There is another action on foot seeking the recovery of rent.

It is common ground that none of the loans or interest had been paid by 16 January 1986. On that day the appellant signed a document acknowledging that all four loans had been made, that the interest rate in respect of each of the first three loans was 13 per cent for the first year and 15 per cent for the second year, and that the interest in respect of the Rosebery property loan was also 15 per cent.

The total purchase price of the Rosebery property was $160,000 and settlement occurred on 24 January 1986. The balance purchase price with adjustments totalled $145,102.24.

In order to participate in the completion of the purchase of the Rosebery property, the appellant and his wife had borrowed $90,000 from the Commonwealth Bank earlier in January 1986. That amount was credited to their joint cheque account, which on 22 January, after their previous overdraft was satisfied, showed a credit balance of $81,645.94. A total of $81,037.37 was withdrawn from the cheque account of the appellant and his wife on 23 January 1986, the day before completion of the purchase of the Rosebery property, leaving a credit balance in the joint account of only $277,031. The difference between $81,037.37, the amount withdrawn from the appellant and his wife's cheque account on 23 January 1986 and $72,555.12 which was half the adjusted balance purchase price in respect of the Rosebery property is $8,426.25. Apart from the appellant's assertion, there is no evidence that he had more than that amount available to repay the respondents any part of what he owed in January 1986.