Zarbalas v Vergos [2017] NSWDC 439

District Court New South Wales

Medium Neutral Citation: Zarbalas v Vergos [2017] NSWDC 439 Hearing dates: 2, 3 and 6 November 2017 Date of orders: 07 November 2017 Decision date: 07 November 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $80,733.14 inclusive of interest. (2) Dismiss the cross-claim for the occupation licence fee. (3) Dismiss the claim for the caretaker fee. (4) Defendant/cross-claimant to pay the plaintiff's/cross-defendant's costs of the proceedings, including the costs of the cross-claim. Catchwords: COMMERCE – loans – receipts - sham - caretaking fee - occupancy fee – penalty interest Legislation Cited: Civil Procedure Act 2005, s 100 Cases Cited: Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; (2016) 333 ALR 569 Category: Principal judgment Parties: Vasilios Zarbalas (plaintiff/cross-defendant) Kosta Vergos (defendant/cross-claimant) Representation: Counsel: Mr D Allen (plaintiff/cross-defendant) Mr R Goodridge (defendant/cross-claimant)

Solicitors: Slattery Thompson (plaintiff/cross-defendant) H Danalis & Co. (defendant/cross-claimant) File Number(s): 2016/167942 Publication restriction: None

Judgment

A. Introduction 1. The proceedings involve three claims. In the first, Vasilios Zarbalas says that he lent Kosta Vergos $66,000 and has not been repaid. Mr Vergos disputes that he received $56,000 and says that the other $10,000 was repaid. Mr Zarbalas sues for the loan moneys with interest. 2. The other part of the proceedings concerns obligations said to arise from Mr Zarbalas staying at Mr Vergos' warehouse premises from February 2012 to November 2014. Mr Zarbalas alleges that Mr Vergos promised to pay him $20 per hour for caretaking, and initially claimed an amount equal to $20 multiplied by 24 hours multiplied by the number of calendar days in that period of two years and nine months. Mr Vergos alleges that Mr Zarbalas owes him $500 per week for that same period, as an occupancy licence fee. 3. There are no documents that evidence the caretaking fee or the occupancy fee. In respect of the loan, there are documents signed by Mr Zarbalas and Mr Vergos and witnessed by Spyros Andrews, a Justice of the Peace, which confirmed the loan. Those documents are not in dispute. There are also receipts reportedly signed by Mr Zarbalas indicating that the loans were repaid. Those documents are rejected as forgeries by Mr Zarbalas. Mr Vergos does not claim that the $56,000 was repaid and admits that he signed the documents evidencing the loan. He says that apart from the $10,000 loan, which he said was repaid, the loan documents were a sham with no money changing hands and the receipts were evidence that no money was owed.