Liristis & Ors v Danic [2008] NSWSC 1314

New South Wales Supreme Court

CITATION : Liristis & Ors v Danic [2008] NSWSC 1314

HEARING DATE(S) : 4 and 5 December 2008

JUDGMENT DATE : 5 December 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 5 December 2008

DECISION : Judgment for Defendant on Statement of Claim; judgment for Cross Claimant on Cross Claim.

CATCHWORDS : CONTRACT – SPECIFIC PERFORMANCE – Whether Defendant signed alleged contract for sale of land – whether purchaser able to complete contract. - HELD: Plaintiffs' claims fail on facts.

CATEGORY : Principal judgment

Tony Liristis (First Plaintiff) PARTIES : T&M Holdings Group Pty Ltd (Second Plaintiff) The Trustee for the Serenity Service Trust (sic) (Third Plaintiff) Gabriel Danic (Defendant)

FILE NUMBER(S) : SC 5907/07

COUNSEL : In person (Plaintiffs) P.P. O'Loughlin (Defendant)

SOLICITORS : In person (Plaintiffs) Redmond Hale Simpson (Defendant)

5907/07 Liristis & Ors v Danic

JUDGMENT – Ex tempore 5 December, 2008

Introduction

1 The Plaintiffs seek an order for specific performance of an alleged contract for sale of commercial premises in Kingsgrove Road, Kingsgrove ("the Property"). The Defendant, Mr Danic, is the registered proprietor of the Property. 2 The case on behalf of the Plaintiffs is conducted by the First Plaintiff, Mr Liristis, in person. The Third Plaintiff, although not expressly named in the Statement of Claim, is, apparently, Serenity Holdings Pty Limited ("Serenity"). Serenity is apparently controlled by Mr Liristis. 3 I will use the word "apparently" rather often in this judgment because the evidence in many respects is unclear and unsatisfactory. This is not due merely to the fact that Mr Liristis is not a lawyer. To my perception he is highly intelligent and obviously well versed in Court procedures, in the rudiments of the law of evidence and in the legal issues relating to his case. So well is he versed in the procedure of the Court that at the conclusion of his cross examination he reminded me that he had a right to give further evidence on oath by way of re-examination. So well versed in the law is he that he referred accurately, if I may say so, in his final submissions to the principles of unjust enrichment in support of his case, although a claim founded on unjust enrichment was not pleaded in his Statement of Claim. 4 In short, this case is highly unusual in that a litigant in person, not a lawyer, has conducted it as effectively as if he were a lawyer. A perusal of the transcript will show that Mr Liristis frequently and accurately employs the terms of art of advocacy. 5 I make these observations to underline that, in so far as Mr Liristis has not adduced evidence on behalf of the Plaintiffs satisfactorily, I have formed the conclusion that he has done so deliberately rather than by lack of familiarity with the procedure of the law and the principles of law which are relevant to these proceedings. 6 As I have noted, Serenity seeks an order that Mr Danic specifically perform an alleged contract in writing dated 3 May 2006 whereby Mr Danic agreed to sell the Property to the Third Plaintiff for a price of $1.8M. The contract is allegedly signed by Mr Danic. 7 Mr Liristis says that the original of the contract has been lost, in circumstances to which I will come. He produces a photocopy of the front page of the contract which apparently bears the signature of Mr Danic. Mr Danic says that the photocopy signature looks like his, but he resolutely denies signing the original document or, indeed, any contract for sale to Mr Liristis or any of his companies. Further, Mr Danic says that even if there was a contract for sale to Serenity, neither Serenity nor Mr Liristis nor any of his companies is, or ever was, in a financial position to complete that contract, so that specific performance should not be ordered. 8 By a Cross Claim, Mr Danic seeks an order for vacant possession of the Property. The Second Plaintiff, T&M Holdings ("T&M"), a company apparently controlled by Mr Liristis, was the lessee of the Property under a lease commencing on 1 April 2003 for a term of six years. 9 There is incontrovertible evidence that T&M has frequently been in default of payment of rent under the lease and that Mr Liristis has frequently promised to pay arrears of rent. There is incontrovertible evidence that those promises were largely unfulfilled. Mr Liristis admits frankly that when he commenced these proceedings, in circumstances to which I will come, T&M owed rent under the lease. He concedes that although T&M remains in occupation of the Property it has not paid rent since December 2007. Accordingly, on any view of it and regardless of the particular quantum of rent now outstanding, it is incontrovertible that T&M is in substantial breach of the lease, as the rental is in the region of $11,000 a month. 10 The issues are straightforward: – did Mr Danic sign the alleged contract for sale dated 3 May 2006; – if a valid contract for sale exists, should an order for specific performance be made in light of the Defendant's contention that Serenity, Mr Liristis and his companies are financially unable to complete; – if there is no valid and enforceable contract for which specific performance should be ordered, is Mr Danic entitled to succeed in his Cross Claim for an order for possession of the Property and for judgment in the amount of rent which he claims.