Patricia Catherine Anthony v Vince Perry and Anor [2015] NSWDC 120

Patricia Catherine Anthony v Vince Perry and Anor [2015] NSWDC 120

The first Agreement, construed commercially and purposively, provided an indemnity by both defendants for the plaintiff's capital. The first and second Variation Agreements incorporated the identical terms and conditions and extended that indemnity to the increased total investment of $700,000.00. The court accepted the plaintiff's evidence over Mr Perry's evidence, found that the second Variation Agreement was entered into on 1 February 2000, rejected the asserted agreement to reduce liability by $100,000.00, and held that the $104,058.00 paid during trading was a distribution of net profits rather than repayment of capital. After crediting payments and chattels, the defendants remained...

Jurisdiction
Australia
Judgment Date
17 July 2015
Procedural Posture
Civil Claim for Contractual Indemnity for Currency Trading Losses / Principal Judgment After Hearing
Outcome
Verdict and judgment for the plaintiff against the defendants in the sum of $288,403.45.
Legal Topics
['construction of Joint Venture Agreement' 'contractual Indemnity' 'guarantee' 'variation Agreements' 'currency Trading Losses' 'jones V Dunkel Inference' 'credibility of Witnesses' 'interest and Costs']
['contract Law' 'guarantees and Indemnities' 'civil Procedure'] ['construction of Joint Venture Agreement' 'contractual Indemnity' 'guarantee' 'variation Agreements' 'currency Trading Losses' 'jones V Dunkel Inference' 'credibility of Witnesses' 'interest and Costs']

Case Brief

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Procedural Posture

Civil Claim for Contractual Indemnity for Currency Trading Losses / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first Agreement provided an indemnity by the first defendant and a guarantee by the second defendant, or two indemnities notwithstanding the difference in wording.' 'Whether the indemnity of the first defendant and the guarantee of the second defendant extended beyond the sum of $250,000.00 invested by the plaintiff pursuant to the first Agreement.' 'Whether the second Variation Agreement dated 1 February 2000 was entered into between the plaintiff and the first defendant.' 'If the second Variation Agreement was entered into, whether the personal indemnity of the first defendant and the guarantee of the second defendant extended to the plaintiff in respect of the sum of $200,000.00 paid by Ms Renee Schipper.' 'If the second Variation Agreement was not entered into, whether the plaintiff was entitled to recover the $200,000.00 invested by Ms Schipper.' 'Whether the distribution of $104,058.00 to the plaintiff was by way of share of profits or a reduction of capital.' 'Whether there was a separate agreement enforceable at law that the first defendant would be liable in respect of only $100,000.00 of the $200,000.00 invested by Renee Schipper.']

Ratio Decidendi

The first Agreement, construed commercially and purposively, provided an indemnity by both defendants for the plaintiff's capital. The first and second Variation Agreements incorporated the identical terms and conditions and extended that indemnity to the increased total investment of $700,000.00. The court accepted the plaintiff's evidence over Mr Perry's evidence, found that the second Variation Agreement was entered into on 1 February 2000, rejected the asserted agreement to reduce liability by $100,000.00, and held that the $104,058.00 paid during trading was a distribution of net profits rather than repayment of capital. After crediting payments and chattels, the defendants remained...

Court Disposition

Verdict and judgment for the plaintiff against the defendants in the sum of $288,403.45.

Orders

  • ['Verdict and Judgment for the Plaintiff against the Defendants in the sum of $288,403.45.' "The Defendants are to pay the Plaintiff's costs of the proceedings." 'Grant a stay of Judgment for a period of 28 days.' 'Grant liberty to the parties to apply on 7 days notice, by way of Notice of Motion, together with any...