Structum Pty Ltd v Basilios Mihalopoulos & CWCN Pty Ltd [2019] NSWDC 119

Structum Pty Ltd v Basilios Mihalopoulos & CWCN Pty Ltd [2019] NSWDC 119

The evidence did not establish on the balance of probabilities that the First Defendant was so incapacitated by intoxication as to be unable to understand the Deed Poll if it had been explained to him, nor that the Plaintiff acted unconscionably or preyed on a special disability. The First Defendant chose not to read the Deed Poll despite being invited to do so, and his own fault or negligence in not reading or seeking advice bars the defences raised. The transaction was at arm's length and not unjust or unconscionable, even under statutory regimes pleaded. Judgment therefore given for the Plaintiff.

Jurisdiction
Australia
Judgment Date
09 April 2019
Procedural Posture
Civil / Judgment After Trial
Outcome
Judgment for the Plaintiff against both Defendants jointly and severally
Legal Topics
['unconscionable Conduct' 'guarantee' 'incapacity' 'non Est Factum' "arm's Length Transaction" 'intoxication' 'commercial Arrangements']
['contract Law' 'equity' 'consumer Law' 'civil Procedure'] ['unconscionable Conduct' 'guarantee' 'incapacity' 'non Est Factum' "arm's Length Transaction" 'intoxication' 'commercial Arrangements']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Judgment After Trial

Legal Issues

  1. 1 ['Whether execution of a Deed Poll expressing third party guarantees should be set aside due to alleged incapacity (intoxication) of the First Defendant' 'Whether the Plaintiff engaged in unconscionable conduct' 'Application of non est factum defence']

Ratio Decidendi

The evidence did not establish on the balance of probabilities that the First Defendant was so incapacitated by intoxication as to be unable to understand the Deed Poll if it had been explained to him, nor that the Plaintiff acted unconscionably or preyed on a special disability. The First Defendant chose not to read the Deed Poll despite being invited to do so, and his own fault or negligence in not reading or seeking advice bars the defences raised. The transaction was at arm's length and not unjust or unconscionable, even under statutory regimes pleaded. Judgment therefore given for the Plaintiff.

Court Disposition

Judgment for the Plaintiff against both Defendants jointly and severally

Orders

  • ['Judgment for the Plaintiff against the Defendants jointly and severally in the sum of $314,980.05.' 'Interest pursuant to s 100 Civil Procedure Act 2005 (NSW) in the sum (as agreed) of $26,518.73.' "The Defendants to pay the Plaintiff's costs of the proceedings."]