Criticos v Kapeleris [2003] NSWSC 1229

New South Wales Supreme Court

CITATION : Criticos v Kapeleris [2003] NSWSC 1229 HEARING DATE(S) : 1 July 2003 - 4 July 2003, 13 August 2003, 8 September 2003 JUDGMENT DATE : 19 December 2003 JURISDICTION: Equity JUDGMENT OF : Master Macready at 1 DECISION : See paragraph 57

CATCHWORDS : Deeds -- Whether deed handed over in escrow pending the making of a loan -- Held not as it was merely a recording of an existing indebteness -- Setting aside of deed under Contracts Review Act as one covenantor had not recieved any of the funds lent and acknowledged in the deed LEGISLATION CITED : Contracts Review Act 1980 Cook v Bank of New South Wales (1982) 2 BRP 9580 National Australia Bank v Sampson (No. 2) Unreported CASES CITED : O'loughlin & Ors v Mount & Anor Unreported Phillips v Ward (1863) 2 H.C. 717; 159 ER 297 Shomat v Rubenstein Unreported Angelo Criticos first plaintiff PARTIES : Katina Criticos second plaintiff Theo Kapeleris first defendant Katrina Kapeleris second defendant FILE NUMBER(S) : SC 1047/03 COUNSEL : M Gorrick for the plaintiffs A Rogers for the defendants SOLICITORS : GJ Gooden Solicitor for the plaintiffs David Hand Solicitor for the defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Friday 19 December 2003

1047/03 Angelo Criticos and Katina Criticos v Theo Kapeleris and Katrina Kapeleris JUDGMENT 1 Master: This is the hearing of proceedings originally commenced in the District Court in which the plaintiffs sue to recover the sum of $110,400 and interest said to be owing under a deed dated 20 October 1998. A judge of the court has directed that a Master hear all issues in the proceedings. 2 The deed, excluding the signatures, was in the following form: ACKNOWLEDGMENT OF DEBT THIS DEED made the Twentieth day of OCTOBER 1998. BETWEEN ANGELO CRITICOS AND KATINA CRITICOS of 31 Jarrett Street, Campsie in the State of New South Wales (hereinafter called "the Creditor") of the one part AND THEO KAPELERIS AND KATRINA KAPELERIS of 37 Sandringham Drive, Carlingford (hereinafter called "the Debtor") of the other part WHEREAS the said Creditor has agreed to loan to the Debtor at his request the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120, 000.00) . The Debtor acknowledges his indebtedness to the Creditor for the sum of $120,000.00 which the Debtor has agreed to pay on or before the 1st August, 2000. NOW THIS DEED WITNESSETH AS FOLLOWS:- (1) The Debtor hereby acknowledges that he is indebted to the Creditor in the sum of $120,000.00. (2) The Debtor warrants that he shall pay to the Creditor the sum of $120,000.00 on or before the 1st August, 2000. (3) If the principal sum has not been re-paid by the 1st August, 2000 then the Debtor shall pay interest at the rate of eight percent (8%) per annum on the amount remaining outstanding. (4) It is agreed and declared that the production of this Deed shall be absolute and conclusive evidence in any Court at any time of the Debtors indebtedness. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals on the, day and year hereinbefore written.