Criticos v Kapeleris [2003] NSWSC 1229

Criticos v Kapeleris [2003] NSWSC 1229

The deed executed on 20 October 1998 recorded an existing indebtedness owed by the first defendant and was not conditional upon a future loan. There was no escrow condition. The second defendant was not involved in prior loans, received no funds, and the deed was unjust as against her under the Contracts Review Act. The deed stands as against the first defendant, with judgment entered accordingly.

Parties
First Plaintiff: Angelo Criticos; Second Plaintiff: Katina Criticos; First Defendant: Theo Kapeleris; Second Defendant: Katrina Kapeleris
Jurisdiction
Australia
Judgment Date
19 December 2003
Procedural Posture
Civil / Judgment
Outcome
Deed set aside against second defendant; judgment against first defendant for $110,400 plus interest
Legal Topics
Deed, Acknowledgement of Debt, Contracts Review Act, Joint Liability, Relief Against Enforcement
Equity Contract Law Deed Acknowledgement of Debt Contracts Review Act Joint Liability Relief Against Enforcement

Case Brief

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Parties

Angelo Criticos

First Plaintiff

Katina Criticos

Second Plaintiff

Theo Kapeleris

First Defendant

Katrina Kapeleris

Second Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the deed recorded an existing indebtedness or was in anticipation of a new loan
  2. 2 Whether there was an escrow condition on delivery of the deed
  3. 3 Whether the deed or clause 4 should be set aside as unjust under the Contracts Review Act

Ratio Decidendi

The deed executed on 20 October 1998 recorded an existing indebtedness owed by the first defendant and was not conditional upon a future loan. There was no escrow condition. The second defendant was not involved in prior loans, received no funds, and the deed was unjust as against her under the Contracts Review Act. The deed stands as against the first defendant, with judgment entered accordingly.

Court Disposition

Deed set aside against second defendant; judgment against first defendant for $110,400 plus interest

Orders

  • Deed made 20 October 1998 set aside as against second defendant
  • Judgment against first defendant in the sum of $110,400