Iacullo v Hillam [2014] NSWSC 1021

Supreme Court New South Wales

Medium Neutral Citation: Iacullo v Hillam [2014] NSWSC 1021 Hearing dates: 21/07/2014 Decision date: 30 July 2014 Before: Ball J Decision: (1)Judgment for the plaintiffs in the sum of $981,647.95. (2)The defendant pay the plaintiffs' costs of the proceedings. Catchwords: CONTRACT - multiple subsequent agreements - novation - whether parties intended subsequent agreements to replace earlier agreements CONTRACT - construction - whether obligation to pay conditional on grant of charge - whether failure to pay or grant charge in repudiation of agreement - where failure by all parties to enforce obligations abandonment of agreement Cases Cited: DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 Summers v The Commonwealth (1918) 25 CLR 144 Category: Principal judgment Parties: Dominic Iacullo (First Plaintiff) Lillian Iacullo (Second Plaintiff) John Hillam (Defendant) Representation: Counsel: DA Smallbone with WK Soon (Plaintiffs) JB Whittle SC with D Neggo (Defendant) Solicitors: I E Duffield (Plaintiffs) Mills Oakley Lawyers (Defendant) File Number(s): 2014/66418 Publication restriction: None

Judgment

Introduction 1Pursuant to three loan agreements, the plaintiffs, Mr and Mrs Iacullo, agreed to lend to the defendant, Mr Hillam, a total amount of $455,000. Mr Hillam agreed to repay the loans by 12 January 2012 and to pay interest on the amount outstanding at the rate of 15 percent per annum. He also agreed, subject to an irrelevant qualification, to transfer to Mr and Mrs Iacullo shares in a company known as Carpentaria Exploration Ltd (Carpentaria) with a total value of twice the amount lent or, if those shares were not transferred to Mr and Mrs Iacullo by the due date for repayment of the loans, to pay an amount equal to twice the amount of the loans at that time. 2Mr and Mrs Iacullo advanced the sum of $380,000. They refused to advance the balance of $75,000 until Mr Hillam provided security, which he did not do. Mr Hillam has now repaid the amounts lent to him together with interest (the last payment was made during the course of the hearing). However, he has not transferred to Mr and Mrs Iacullo any shares in Carpentaria or made any payments as an alternative to the transfer of those shares. Mr and Mrs Iacullo now seek to recover the sum of $910,000 (twice the total amount agreed to be lent) together with interest on that amount pursuant to that obligation. The question that remains in the case is whether they are entitled to do so.