Ante Tasovac v Franka Vlasic [2011] NSWDC 195

District Court New South Wales

Medium Neutral Citation: Ante Tasovac v Franka Vlasic [2011] NSWDC 195 Hearing dates: 17 October 2011 Decision date: 09 December 2011 Jurisdiction: Civil Before: Judge M Sidis Decision: 1 Verdict for the plaintiff on his claim that the defendant owes him $175,000 together with interest. 2 The cross claim is dismissed. 3 Determination of the plaintiff's claim to payment of the value of his interest in the Zrnovska Banja development remains outstanding. Catchwords: CONTRACT: undocumented commercial transactions; cash payments; credit; evidentiary deficiencies Category: Principal judgment Parties: Ante Tasova (Plaintiff) Franka Vlasic (Defendant) Representation: Mr C P Heazelwood for the Plaintiff Mr P Barber for the Defendant Nikola Velcic & Associates (Plaintiff) Arnotts Lawyers (Defendant) File Number(s): 2010/114069

Judgment 1The plaintiff and the defendant met in Australia some time between 1997 and 2001. They became good friends and they entered into commercial transactions that were based on trust and good faith rather than formally documented contracts. Their friendship ended in 2010. Each claimed to be owed money by the other. The determination of their claims depended substantially on which of them I accepted as a witness of credit. 2The plaintiff and the defendant were both born in Croatia. They are both now Australian residents. The plaintiff, aged 75, is a retired builder. The defendant owns and operates a boarding house at Chatswood. 3In 2000 or 2001, after separating from his wife, the plaintiff took a room in the defendant's boarding house. He continued to occupy a room there until 5 February 2010. He claimed that he undertook maintenance and handyman work on behalf of the defendant as well as substantial renovations at the boarding house. He claimed that the defendant paid for the materials used in this work and promised to pay him for his time and labour when all the work was finished. He claimed he was paid nothing for the work. 4The plaintiff owned two parcels of land on the Croatian island of Korcula. One parcel of land was at Tri Zhala. He built a house on this parcel, using the services of a local builder to build the s hell and undertaking the internal fit out work himself. This parcel of land with the house was sold for 220,500 in June 2004. Bank records indicated that the plaintiff received $306,111.81 from this sale. 5Another parcel was at Zrnovska Banja. In May 2 002 the plaintiff transferred title to this parcel to the defendant. The document recording this transfer was titled Gift Contract and was dated 6 May 2002 but the plaintiff claimed that the defendant agreed to pay him $27,000 for the land. 6In September 2002 the defendant contracted with Probik Constructions, the building company that built the plaintiff's house at Tri Zhala, to erect the shell of a four apartment building on the land at Zrnovska Banja. The plaintiff claimed that he completed the building by undertaking the internal fit out work. The defendant claimed that she organised and paid for the fit out work. 7The plaintiff claimed that the defendant owed him: (1)$175,000 plus interest, being money he claimed he lent the defendant in June 2004; and (2)$250,000 in payment for the land and his work on the development at Zrnovska Banja and his work at the Chatswood boarding house and for his share of the proceeds of the development. 8The defendant denied that she owed any money to the plaintiff. She denied that she owed the plaintiff any money for his work at the boarding house or the Zrnovska Banja development. She claimed that the Zrnovska Banja land was given to her as a gift, although subject to certain conditions. She cross claimed that she was in fact owed considerable sums of money made up of: (3)advances of various parcels of cash; (4)interest on a loan of $175,000 that she took out at the request of the defendant and for his benefit; (5)penalty costs incurred when the loan was repaid prior to the expiry of its five year term; (6)unpaid rent for his room at the boarding house; (7)amounts paid on behalf of the defendant for airline tickets to Croatia; mobile telephone services; private health insurance and other miscellaneous expenses. 9The defendant agreed that the plaintiff repaid $175,000 but claimed that he owed her a balance of these amounts totalling $138,407.62. 10There were some facts on which the parties agreed and others that were established by objective documentary material. The established facts were: 1 The plaintiff contracted with Probik Constructions to build the house at Tri Zhala to lock up stage. This construction work was undertaken in 2000 and 2001. The plaintiff fitted out the house in 2002 and 2003. The plaintiff sold the house in June 2004. 2 The plaintiff transferred the Zrnovska Banja land to the defendant under a document that recorded the transfer as a gift in May 2002. 3 The defendant took out a loan of $175,000 with Royal Guardian Mortgage Management Pty Limited on 2 Septemb er 2002. She received $173,342.20 net from this transaction. The loan was secured against the title to the Chatswood boarding house. 4 The defendant entered into a contract with Probik Constructions to build an apartment building at Zrnovska Banja on 21 September 2002 for the sum of 71,196 or $110,000. 5 The plaintiff undertook some work at the Zrnovska Banja apartments. 6 The plaintiff undertook some work at the boarding house. 7 Between October and December 2002 the defendant paid Probik Constructions about 43,400 out of the loan funds provided by Royal Guardian. 8 The defendant paid various amounts for the plaintiff for airfares, mobile telephone and health insurance between 2002 and 2010. 9 The plaintiff sold the Tri Zhala house for 220,500 on 11 June 2004. 10 On 22 June 2004, the plaintiff paid $175,000 to the defendant. 11 On 15 September 2004 the defendant paid Royal Guardian $184,632.77 in repayment of the loan and penalty charges and costs. 12 The defendant granted a power of attorney to the plaintiff on 8 November 2004 that permitted him to deal with the sale of her assets. 13 Between 2002 and 2008 the defendant regularly deposited money into the plaintiff's bank account. The plaintiff withdrew funds from this account in Croatia and Australia. 14 The Zrnovska Banja apartment building was completed in 2008. 15 Both the Zrnovska Banja apartment building and the Chatswood boarding house have been placed on the market for sale but no offers acceptable to the defendant have been received.