Subota v Boskovic (No 2) [2013] NSWDC 262

Subota v Boskovic (No 2) [2013] NSWDC 262

The Court accepted the plaintiff's evidence that the parties agreed in 2011 that, after the plaintiff paid his half of the residual NAB debt, the defendant was obliged to pay the remainder. The Court found the plaintiff reliable and the defendant's evidence less clear and affected by convenient lack of memory. That agreement was sufficient for the plaintiff to succeed. The Court also accepted that, even absent the 2011 agreement, the 2005 arrangement required the parties to share profits and losses equally, making the defendant liable for the unpaid loss. Quantum was not disputed, so judgment was entered for the amount paid by the plaintiff plus interest.

Jurisdiction
Australia
Judgment Date
09 August 2013
Procedural Posture
Civil Claim Concerning a Real Estate Development Agreement, Breach of Agreement, and Contribution Between Guarantors / Principal Ex Tempore Judgment After Hearing
Outcome
Judgment for the plaintiff in the sum of $203,987.27 inclusive of interest, with the defendant to pay the plaintiff's costs.
Legal Topics
['real Estate Development Agreement' 'agreement to Share Profits and Losses' 'implied Term' 'breach of Agreement' 'co Guarantor Contribution' 'damages and Interest']
['contract Law' 'equity' 'real Property Development' 'civil Litigation'] ['real Estate Development Agreement' 'agreement to Share Profits and Losses' 'implied Term' 'breach of Agreement' 'co Guarantor Contribution' 'damages and Interest']

Case Brief

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Procedural Posture

Civil Claim Concerning a Real Estate Development Agreement, Breach of Agreement, and Contribution Between Guarantors / Principal Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the parties made an oral agreement in 2011 that, after the plaintiff paid his half of the residual bank debt and provided term deposit security, the defendant would pay the remainder of the loan.' 'Whether the 2005 agreement to share profits also required the parties to share losses equally, including the remaining NAB loan shortfall after sale of the properties.' 'Whether the plaintiff could recover contribution from the defendant as a co-guarantor under the 2005 and/or 2011 guarantees.' 'What amount, including interest, should be awarded if liability was established.']

Ratio Decidendi

The Court accepted the plaintiff's evidence that the parties agreed in 2011 that, after the plaintiff paid his half of the residual NAB debt, the defendant was obliged to pay the remainder. The Court found the plaintiff reliable and the defendant's evidence less clear and affected by convenient lack of memory. That agreement was sufficient for the plaintiff to succeed. The Court also accepted that, even absent the 2011 agreement, the 2005 arrangement required the parties to share profits and losses equally, making the defendant liable for the unpaid loss. Quantum was not disputed, so judgment was entered for the amount paid by the plaintiff plus interest.

Court Disposition

Judgment for the plaintiff in the sum of $203,987.27 inclusive of interest, with the defendant to pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff in the sum of $203,987.27 inclusive of interest.' "Defendant to pay the plaintiff's costs." 'Exhibits to be returned after 28 days.']