Zovak v Johnson [2010] ACTSC 8 (5 February 2010)

Last Updated: 15 February 2010

ANTON ZOVAK & ORS v TIMOTHY MICHAEL JOHNSON

[2010] ACTSC 8 (5 February 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 45 of 2009

Judge: Higgins CJ

Supreme Court of the ACT

Date: 5 February 2010

IN THE SUPREME COURT OF THE )

) No. SCA 45 of 2009

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ANTON ZOVAK

First Appellant

JOHN VRKIC

Second Appellant

DIVERSE CONSTRUCTIONS PTY LIMITED ACN 082 438 428

And

VIPENA PTY LIMITED ACN 096 579 065

Third Appellant

AND: TIMOTHY MICHAEL JOHNSON

Respondent

ORDER

Judge: Higgins CJ

Date: 5 February 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the costs of, and incidental to, the appeal.

1. This was a claim by the plaintiff/respondent, Mr Johnson, for moneys representing a sum he had advanced to the defendants/appellants, at least those of them that remain in legal existence. In that regard, I should note that the first appellant and one of the third appellants discontinued the appeal and it subsequently proceeded between the second appellant and respondent only. The initial purpose of the advancement was to finance the construction of a dwelling on the land, the lease to which was owned by the defendants.

2. This was not an unusual arrangement and no doubt was entered into in the expectation that finance would be forthcoming for Mr Johnson, and the property would proceed to be sold to him at the agreed price. It may be that that agreed price would not have returned a profit to the appellants and it seems to be suggested that it would not. Indeed it might have even returned a bigger loss than ultimately was the case.

3. In any event, that was the agreement. Had the finance been forthcoming and Mr Johnson been able to fulfil the condition of provision of finance, then clearly he would have been entitled to receive the property at the price agreed. There was discussion, as Mr Johnson’s evidence makes plain, about what would happen if that finance was not forthcoming.

4. As her Honour found it to be, that arrangement was that in the event that finance was not forthcoming, the agreement as to purchase would not proceed, and the money paid would be repayable to Mr Johnson, not immediately, but on the sale of the property, no doubt to preserve the opportunity for the appellants to make a profit on the transaction which, unhappily for them, they did not. At least that is what is said, there was no evidence of that before her Honour.

5. In any event, that event having occurred, there is no reason why the appellants would not be liable then to repay to Mr Johnson the money which he had advanced to them. Her Honour was, in my view, quite right to say so. In the circumstances, I can see no reason why the judgment should not stand.

6. The appellants will pay the respondent’s costs of, and incidental to, the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 12 February 2010

Counsel for the 2nd and 3rd Appellants: Mr Roberts

Solicitor for the 2nd and 3rd Appellants: Collaery Lawyers

Counsel for the Respondent: Mr Sharwood

Solicitor for the Respondent: Meyer Vandenberg Lawyers

Date of hearing: 5 February 2010

Date of judgment: 5 February 2010