Conomos Chan & Co Pty Ltd v Condra No 28 Pty Ltd [1991] QSC 225

10 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE SHEPHERDSON BRISBANE, 11 JUNE 1991 ~EV/.c:t7p-;:_::;:::: ::-"~..._."•-··~ t '.1L:..; ~'.,",.,,!,;:.:::; Court Repo,lir.o Burs-au · 0st01 rP ."· Y 19 g 1 No. 887 of 1989 {Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: CONOMOS CHAN & co PTY. LTD. Plaintiff 10 20 20 30 -and- CONDRA NO. 28 PTY. LTD. as trustee for the CONSTANTINE ANDREATIDIS FAMILY TRUST JUDGMENT HIS HONOUR: This matter came on for trial on 6 June. It was not completed on the afternoon of 7 June and I adjourned the matter to this morning to conclude the hearing. All evidence has been led. The plaintiff sued the defendant for moneys lent and 40 for interest. The specially endorsed writ was issued on 14 March 1989. A defence was delivered on 3 May 1989 by Birch Kleidon, solicitors of Upper Mount Gravatt who acted for the defendant. When the matter came on for trial Mr. Constantine 50 Andreatidis appeared himself. He told me that he had no papers, as his solicitors had retained them. He told me, as I recall, they claimE:.: to be owed some $8,000 and it became clear to me that his solicitors were exercising a lien for costs. 60 :::: 1 30 40 50 60 -- 1 of 5 -- The trial proceeded with Mr. Wilson appearing for the plaintiff. For the plaintiff Con Theo Conomos gave evidence. He deposed to loans made by the plaintiff company of which he was a shareholder and director to the defendant. I should here say that Mr. Andreatidis informed me that 10 he was a director of the defendant, Condra No.28 Pty.Ltd., and that that company was the trustee for the Constantine Andreatidis Family Trust. Mr. Conomos in his evidence went through cheque butts and other documents to support the claim. There were loans 20 made, as I so find, by the plaintiff to the defendant and they may be classified in two transactions: firstly, the Burnett Lane property and, secondly, the Moorooka property. In respect of the Burnett Lane property, I am satisfied that the plaintiff did lend to the defendant two sums 30 totaling $110,600. These loans were not disputed by Mr. Andreatidis who gave sworn evidence. There was a dispute between Mr. Andreatidis and Mr. lconomos as to whether a rate of interest had been agreed. ! Mr. Conomos said a rate of interest had been agreed at 21 40 per cent. Mr. Andreatidis swore that there was no prior agreement as to a rate of interest, but that in discussions sometime after the initial loan of $102,000 had been made, a irate of interest of 15 and a half per cent was mentioned. Payments were made by Mr. Andreatidis, all in cash, in so reduction of the loan debt. A document placed before me, Exhibit 5, shows that the total moneys repaid were $120,400. Mr. Andreatidis, in his evidence, swore that he had paid $119,000. I find that $120,400 has been paid. In respect of the Burnett Lane loan - and details of 10 30 50 --~6~0-t--------------------------------------' 60 2 -- 2 of 5 -- the advances and the repayments appear in Exhibit 5 - I fin~ that there was agreement by .the. d_efendant with the plaintiff to pct::f in ::eres.t at 2~earP~.cen~, to be compounded. :n a defence celivered by the defendant's solicitors a pl a is. made that the Money Leneers Ac~ had been breached. It 10 :i_-=; a::..so a11e.ged that the plaintfi'ff ca:r:r~,~"llii'nn business as a money lender and having heard Mr. Conomos, I find that this allegation is not made·out. I do find, however, that the moneys lent in respect of the Burnett Lane property were made by a company who was within the definition of "money lender" as defined in the Money Lenders Act 1916 (as amended) in that the 21 per cent exceeded the rate prescribed for the time being by the Order-in-Council. That rate was 18 per cent. The loan is not made void. Instead, the plaintiff is 30 entitled to interest at the rate of 18 per cent per annum [see J.B. Witts Pty. Ltd. v. Wholesalers (Australia~ Pty.Ltd. Limited 1963, 37 Australian Law Journal Reports 199.] In respect of the Burnett Lane loan then, Mr. Wilson 40 has handed to me a document showing the amount presently owing on the basis of interest calculated at 18 per cent per annum. That document, which I shall make Exhibit 63, shows that the amount now outstanding is $12,146.97 and I find that that is the amount presently owing by the defendant to so the plaintiff in respect of the Burnett Lane transaction. I turn now to the Moorooka transaction. Here, the defendant had bought a property at 1131 Ipswich Road. The property was virtually rebuilt in stages and was re-equipped for the business to be conducted. I am satisfied, having 10 20 30 40 50 w w 3 -- 3 of 5 -- 10 heard Mr. Conomos, that Mr. Andreatidis was an efficient - operator of take-away shops providing fast food. On this occasion, I am satisfied that the plaintiff did lend to the defendant varying sums of money over a period from 18 July 1985 until 23 November 1987. Mr. Andreatidis informed me that he kept no records the loans. On many occasions, Mr. Conomos obtained Mr. Andreatidis' signature on a cheque butt. That signature appeared in quite a large number of the exhibits. There were some further moneys paid which had nothing at all to do 20 with the Moorooka property. I refer to the payments made to Redcliffe City Council and, it appears, Brisbane City Council for rates owing by the defendant. and 41.) (See Exhibits 40 Unfortunately, due to Mr. Andreatidis not having kept 30 records, he had nothing to support his claim that he had repaid these particular loans in cash. Mr. Conomos appears to have kept accurate records. He had receipts made out for each payment made by Mr. Andreatidis under both the Burnett Lane and Moorooka loans. I was not very impressed by the 4 o fact that he did not, on all occasions, give Mr. Andreatidis a receipt. However, having heard the evidence of Mr. Andreatidis, in particular, that he had paid a total of $147,000. to Mr. Conomos in respect of the Moorooka loan and comparing that \;J'ith payments which Mr. Conomos swore he had made, I 10 30 40 50 find that at the end of the day Exhibits 5 and 60 tendered _ 50 60 by Mr. Conorros, show total rep2_y'1Tler 1 ~, hc+-J:1 loans -anc. this figure compares well with a.c1rr,:i_ssions :from P.r. Andreatidis _that he had pa.:l_d.·$266·,ooo.~n short,. the_total repc.yrnents, a.ccordinq-1:o the plaintiff's records, exceed the repayments referred to in Mr. 4 60 -- 4 of 5 -- 10 30 40 so 60 Andreatidis' evidence by the sum of $5,560. In respect of the Moorooka loan it is said that the interest agreed was 19 per cent, compounded. Again, this sum exceeded the amount prescribed under the Money Lenders Act. Again, I find that the plaintiff was not carrying on the business of a money lender, but I do find that the making of the loan constituted i a money lender within the definition of "money lender" in the Money Lenders Act. right to interest is, therefore, drastically reduced. Exhibit 61 placed before me by Mr. Conomos is a calculation of the amount presently owing by the defendant to the plaintiff on the basis of 18 and a half per cent which was the maximum prescribed by the Order-in-Council under the Money Lenders Act at the date each advance was made in respect of the Moorooka loan. I am satisfied that there was agreement to pay 19 per cent interest compounded, but that that amount should be reduced to 18 and a half per cent simple interest. The total amount presently owing is, I find, $375,146.43 in respect of the Moorooka loan. The total amount owing under each of the loan transactions is, therefore, $387,293.40. I give judgment for the plaintiff against the defendant for that sum. I also order the defendant to pay the plaintiff's costs of and incidental ~o the action to be taxed. -Govt. Printer, Qld. 5 10 20 30 40 50 60 -- 5 of 5 --