Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875

Supreme Court New South Wales

Medium Neutral Citation: Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875 Hearing dates: 4 – 6 November 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Jurisdiction: Equity Before: Hallen J Decision: The parties, if possible, are to agree upon the quantum of the Plaintiffs' entitlement, and the form of the orders, reflecting these reasons. A form of orders, if agreed, should be forwarded to the Associate to Hallen J, in hard and soft copy, by 4:00 p.m. on 28 January 2020. If there is no agreement as to the form of orders, by 4:00 p.m. on 28 January 2020, the matter is to be re-listed, by arrangement made no later than 4:00 p.m. on 31 January 2020, with the Associate to Hallen J, for the purpose of obtaining a date for any argument on the form of orders or the quantum of the judgment made in favour of the first and third Plaintiffs or the third Plaintiff respectively. Catchwords: CIVIL PROCEDURE – Debt recovery – Undocumented loans – Dispute arising over payment of two undocumented loans – Loan agreements made between friends – Loan agreement between the three Plaintiffs, or one or more of them, and the two Defendants, or one of them – Dispute about identity of the other parties to each of the two loan agreements – Dispute about who advanced the loan monies and about to whom the loan monies were advanced – What the terms of repayment of each loan were – Whether loans repaid – Whether there was accord and satisfaction in respect of the loan agreements

JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable Legislation Cited: Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ashton v Pratt [2015] NSWCA 12 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Ballantyne v Phillott (1961) 105 CLR 379 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Brown v NSW Trustee and Guardian [2012] NSWCA 431 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd (1975) 133 CLR 72 Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084 Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617 Duck v Mayeu [1892] 2 Q.B. 511 El-Mir v Risk [2005] NSWCA 215 Ermogenous v Greek Orthodox Community of SA Inc (2002) 2009 CLR 95; [2002] HCA 8 Falk v Haugh (1935) 53 CLR 163; [1935] HCA 35 Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97 International Harvester Company of Australia Proprietary Limited v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644 Jingalong Pty Limited v Todd [2015] NSWCA 7 John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd [2019] NSWSC 1006 Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8 Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Parsonage (acting as personal representative in the estate) v Parsonage & Ors [2019] EWHC 2362 (Ch) Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111 Stein v Torella Holdings Pty Ltd ACN 086 346 614 [2010] NSWSC 1445 The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 The Mecca [1897] AC 286 Tobin v Ezekiel (2012) 83 NSWLR 757 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; [2011] NSWCA 389 Visbord v Federal Commissioner of Taxation (1943) 68 CLR 354; [1943] HCA 4 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Watson v Foxman (1995) 49 NSWLR 315 West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66; [1981] HCA 38 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Wilton v Farnworth (1948) 76 CLR 646; [1948] HCA 20 Young v Queensland Trustees Ltd (1956) 99 CLR 560 Texts Cited: Mark L Howe and Lauren M Knott, "The Fallibility of Memory in Judicial Processes: Lessons from the past and their Modern Consequences" (2015) Memory, 2015 Peter Watts and FMB Reynolds, Bowstead & Reynolds on Agency (21st ed, 2018, Sweet & Maxwell) Category: Principal judgment Parties: Patricia Volonakis (first Plaintiff) MPPA Pty Ltd formerly trading as GTS Logistics Pty Ltd (second Plaintiff) Michael Volonakis (third Plaintiff) Ivancica Erceg (first Defendant) Walter Erceg (second Defendant) Representation: Counsel: Mr S Lawrance with Mr A Jordan (Plaintiffs) Mr J Ireland QC (solicitor) (first Defendant) Mr M Southwick (second Defendant)