Boscorp Pty Ltd v Boscorp Number 1 Pty Ltd [2006] QSC 204

State Reporting Bureau jkx)£] <3SC .Queensland Government > Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND REVISED COPIES ISSUED State Reporting Bureau Date: 26 July, 2006 CIVIL JURISDICTION CHESTERMAN J No 2233 of 2005 BOSCORP PTY LTD Plaintiff ACN 010 724 384 RECEIVERS AND MANAGERS APPOINTED) and BOSCORP NUMBER 1 PTY LTD Defendant ACN 103 038 077 BRISBANE . .DATE 22/05/2006 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.1 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HIS HONOUR: The plaintiff has brought this action against the defendant seeking the repayment of advances made between about 13 March 2003 and 19 December 2003. As I mentioned earlier, the defendant has not appeared but from the defence initially filed on its behalf the defendant does not seem to dispute the fact that the amounts claimed by the plaintiff were lent. The defendant 1 s point was that they were not lent to it by the plaintiff but by a company called Equitiloan or Equititrust. Both names appear in the material. That company changed its name. I will call it Equititrust. The plaintiff's claim in essence is that it borrowed moneys from Equititrust pursuant to loan facility agreements, which are in evidence, and that the moneys in question were then applied to or to the benefit of the defendant. It therefore says that upon application those moneys were on-lent by the plaintiff to the defendant and have not been repaid and judgment is sought for them. The plaintiff is a company the directors and shareholders of which were Mr and Mrs Steve Bosiljevac and their son, also Mr Steve Bosiljevac. The defendant is a company the sole director and shareholder of which is Mr Steve Bosiljevac Jnr. One therefore anticipates that there would have been a degree of informality in the dealings of the companies between themselves . I I am told by Mr Savage, who appears for the plaintiff, that disclosure has not revealed any documents in the defendant ' s 22052006 D.l T4/KAS (Chesterman J) 2 JUDGMENT -- 2 of 5 -- 1 possession which throw light on the transactions which evidence in any way the relationship between the companies with respect to the advances. Nor did the receivers, when appointed, find any documents maintained by the plaintiff which showed what was to be done by way of understanding the 10 treatment of the moneys which the plaintiff borrowed from Equititrust but applied for the benefit of the defendant. It is apparent from the material which Mr Savage has taken me to throughout the course of the hearing that moneys were 20 borrowed by the plaintiff from Equititrust and then applied to the benefit of the defendant. On one occasion perhaps the moneys were applied directly to the defendant, that being what is called advance eight, the amount of $113,245. With respect to the other seven advances, which are conveniently summarised 30 in the schedule to the statements of claim, moneys which were supplied by Equititrust at the request of the plaintiff were applied to discharge liabilities of the defendant with respect to the purchase of properties. 40 Therefore, it seems reasonable to conclude as the plaintiff contends, that the relationship between the parties was that of borrower and lender; that the plaintiff lent to the defendant the moneys identified in the schedule, the statement of claim, which it in turn had borrowed from Equititrust. 50 There is in the material no evidence of a direct relationship between the defendant and Equititrust pursuant to which the former would have borrowed moneys from the latter. I am 22052006 D.l T4/KAS (Chesterman J) SO 3 JUDGMENT -- 3 of 5 -- therefore satisfied that the amounts claimed by the plaintiff were in fact lent by it to or to the benefit of or on account of the defendant. The total of the amounts advanced was $901,415, but it is conceded that the defendant has repaid substantial sums to the plaintiff so that the balance of the account between the two companies is much reduced. 22052006 D.l T4/KAS (Chesterman J) 10 Mr Bradley Hellen, a chartered accountant, was appointed by order of the court to investigate the state of the account between plaintiff and defendant. He has submitted a report in 21 which he identifies the total payments made from plaintiff to defendant and from defendant to plaintiff. The net result is an indebtedness from defendant to plaintiff of $344,099.11. It seems to me that report is evidence on which I can, and perhaps should, rely. Mr Savage for the plaintiff admits that 30 the amounts found due by way of setoff from defendant to plaintiff are proper amounts to allow by way of setoff. I therefore give judgment for the plaintiff against the defendant in the sum of $344,099.11. Interest is claimed. There was on the evidence no agreement for interest between plaintiff and defendant. It is therefore appropriate to allow interest under the statute. The rate claimed is 9 per cent, which seems reasonable given that interest is sought only from the date of demand, 3 March, 2005, to today and that the interest sought is simple interest. The calculation comes to $37,756.63. I award that amount of interest bn the judgment. 4-0 50 4 JUDGMENT 60 -- 4 of 5 -- 1 I order the defendant to pay the plaintiff's costs of and incidental to the action to be assessed on the standard basis from commencement of action to 25 August 2005 and thereafter on the indemnity basis. 22052006 D.l T4/KAS (Chesterman J) 10 Upon the plaintiff, by its counsel, giving the usual undertaking as to damages, I order that, except on seven days notice to the plaintiff, the defendant do not, until 22 July 20 2006, further charge, mortgage, enlarge the indebtedness secured by mortgage number 708353040 or encumber apartment 124, Grand Mariner, or dispose of the sale proceeds thereof save insofar as the value, net of the sums owing or claimed to be owing under mortgage numbers 707349813, 707677708 and 38 708353040 on apartment 124 at Grand Mariner, exceeds $400,000. And save that the defendant may sell the apartment and pay, (1), any moneys owing pursuant to the mortgages, the numbers of which I have just recited, (2), any reasonable legal and 40 selling costs, including agent's commission, incurred with respect to the sale. 50 5 JUDGMENT 60 -- 5 of 5 --