Arcaba v K & K Real Estate Pty Limited [2016] NSWSC 1793

Supreme Court New South Wales

Medium Neutral Citation: Arcaba v K & K Real Estate Pty Limited [2016] NSWSC 1793 Hearing dates: 14-18 March 2016 and 6 April 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Before: Hall J Decision: Judgment for the defendant against the plaintiff. The plaintiff is to pay the defendant's costs of the proceedings. In the event that either party wishes to be heard further on the question of costs, I grant leave to apply in that respect. Catchwords: CONTRACT – plaintiff sued defendant for damages for breach of contract in respect of an oral agreement allegedly made between the parties whereby the plaintiff alleged that in return for not seeking immediate repayment of certain loan monies the defendant would pay him the sum of $1.6 million upon finalisation of a property development or the interest of the defendant in the project was sold or finalised – in addition to the repayment of the loan monies – principles as to proof of a cause of action based on contract where spoken words are relied upon as a foundation for such cause of action – requirement to prove the relevant conversation to the reasonable satisfaction of the court – the court should feel an actual persuasion of its occurrence – absence of any contemporaneous records corroborating the alleged oral agreement – credibility of the plaintiff and defendant's directors Cases Cited: Allen v Carbone (1975) 132 CLR 528; [1975] HCA 14 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 3 Brooker v Friend & Brooker & Anor [2006] NSWCA 385 Campbell v Campbell [2015] NSWSC 784 Commonwealth Bank of Australia v Shahen Serobian [2009] NSWSC 302 Polon v Dorian and Ors (2014) 102 ACSR 1; [2014] NSWSC 571 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Milorad Arcaba (Plaintiff) K & K Real Estate Pty Ltd (Defendant) Representation: Counsel: G McGrath (Plaintiff) L Gor (Defendant)