ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-384392
DATE: 20140908
BETWEEN:
DARKO GAGRO
Plaintiff
– and –
MARIN SOPTA
Defendant
Howard Cohen, for the Plaintiff
Marin Sopta, in person
HEARD: June 16, 2014
b. p. o’marra j.
judgment
[1] The plaintiff seeks to collect on an unsecured loan dated from April of 1997, plus interest and costs. The defendant denies he is indebted for any amount to the plaintiff.
[2] The plaintiff has worked as a dental surgeon since 1991. He and the defendant have known each other for well over 30 years. The plaintiff has known the defendant’s wife since they were teenagers.
[3] The defendant spent considerable time in his native Croatia in the 1990s. His wife remained in Canada. The plaintiff claims that the defendant asked him to assist his wife with their home mortgage while he was away. The plaintiff also claims he performed dental work for the defendant who agreed to settle his debt when his home was eventually sold.
[4] I will refer to documents filed by tabs in the Document Book (Ex. 1).
1994
[5] Tab 13-B is a cheque dated October 24, 1994 in the amount of $3,500.00 from Gagro to Sopta. Tab 13-A is a cheque dated November 15, 1994 in the same amount from Sopta to Gagro. This latter cheque was returned NSF and was never replaced.
1995
[6] Tab 13-D is a cheque dated June 5, 1995 from Gagro to the Croatian Artist Society for $3,000.00. There is a handwritten note on the cheque indicating “in care of Mr. Martin Sopta”. Gagro testified that he made out this cheque on behalf of and at the request of Sopta. Gagro viewed this as a loan to Sopta and expected repayment. Sopta was the president of the Croatian Artist Society at the time. Sopta testified these funds were a donation by Gagro to the Society and were not for the use or benefit of Sopta personally.
[7] Tab 13-E is a cheque dated October 3, 1995 from Gagro to the Croatian Artist Society in the amount of $750.00. There is a handwritten note on the cheque indicating “donation”. Mr. Sopta is not referred to on this cheque. Gagro claims that Sopta asked him to make this donation and that he would repay it. Sopta claims this was a donation pure and simple to the Society and not to him personally or for his benefit. He denies he ever owed this money to Gagro.
[8] Tab 13-F is a cheque dated November 1995 from Gagro to Mary Sopta, the wife of the defendant, in the amount of $4,500.00. Gagro testified that Sopta asked him to lend these funds to his wife to help her pay the mortgage on the residence she shared with Sopta. At the time Sopta was staying in Croatia on business for an extended period. Sopta does not dispute that these funds were advanced to his wife but does not agree this was for his benefit or that he personally agreed to repay this amount.
1997
[9] Tab 12 includes a handwritten single page dated April 9, 1997. This is a critical date and document since Gagro submits this as an acknowledgment of debt by Sopta.
[10] Gagro testified that he wrote out the details on this page. It refers to an amount of $19,690.00 as of April 9, 1997 and an interest rate of 21%. A minimum of $1,500.00 per month was to be repaid starting May 15, 1997 until paid in full. At the bottom left side of the page the names and signatures of G. Novak and I. Perkovic appear. On the bottom right side of the page is the signature of Marin Sopta.
[11] Gagro testified that the amount of $19,690.00 as of April 9, 1997 related to loans he had made to Sopta and his wife as well as dental work he had performed for Sopta.
[12] Sopta testified that this document related to funds loaned by Gagro to Perkovic and not to himself. He claims he signed the document as a witness and not to acknowledge any personal debt to Gagro. Perkovic did not testify.
[13] Gordon Novak is a long-time friend of both parties to this action. He testified that he was present on April 9, 1997 when the document was signed. He did not know the details of the financial history between Gagro and Sopta but understood the document related to debts owed by Sopta to Gagro. Significantly, Novak testified that he and Perkovic signed as witnesses and Sopta signed to acknowledge his debt to Gagro.
1998
[14] Tab 3 is a typed, unsigned letter dated “Zagreb July 1, 1998” from Sopta to Gagro. The references are on obvious familiar terms, being “Dear Darko” and ending “Best regards, from Marin”. The letter indicates that Sopta is enclosing a cheque in the amount of USA $10,000.00 and requests that Gagro deduct $4,000.00 from my debt (my emphasis) and $6,000.00 from the debt of Marijan Perkovic.”
[15] Gagro acknowledges receipt of this unsigned letter but claims the cheque was not included or received thereafter.
[16] Tab 4 is a handwritten note dated September 10, 1998 from Gagro to Sopta. It refers to the outstanding loan as of September 9, 1998 as $17,101.27 and seeks repayment as soon as possible.
[17] Also in Tab 4 is a typed letter dated December 6, 1998 from Gagro to Sopta with a fax number indicated. This letter refers to the outstanding balance as $17,705.06 as of November 9, 1998 and the term to repay at the rate of $1,500.00 per month until fully paid.
[18] This letter also refers to receipt of 10,000.00 German marks on September 9, 1997 “which amount was deducted from the amount owed”.
[19] Also in Tab 4 is a typed letter dated January 1, 1999 from Gagro to Sopta. This refers to the outstanding balance as of January 9, 1999 as $18,315.14.
[20] A further typed letter dated August 11, 1999 from Gagro to Sopta refers to the outstanding balance as of August 9, 1999 as $20,680.02.
[21] A further typed letter dated October 2, 2001 from Gagro to Sopta refers to the outstanding balance as of October 9, 2001 as $32,467.25
2003
[22] Tab 6 is a letter dated August 12, 2003 from Gagro’s lawyer to Sopta. It refers to the outstanding balance as of October 9, 2001 being $32,476.25 and as of April 9, 2002 being $39,279.22. The current balance as of August 15, 2003 was $42,807.73.
[23] Tab 9 is a summary prepared by the plaintiff setting out advances to Marin Sopta and receipts from Sopta as follows:
SUMMARY - SOPTA
DATE OF ADVANCE
AMOUNT OF ADVANCE
PAYEE
METHOD
BALANCE
Oct 24 94
$3,500
MARIN SOPTA
CHEQUE
June 5 95
$3,000
MARIN SOPTA
CHEQUE
Sept 30 95
$3,000
MARY SOPTA
CASH
Oct 31 95
$750
MARIN SOPTA
CHEQUE
Nov 9 95
$4,500
MARY SOPTA
CHEQUE
Oct 25 94 to April 9 97
$6,724
MARIN SOPTA
CASH
$21,474
MAY 15 97 SPTA SIGNS ACKNOWLEDGEMENT THAT HE OWES $19,690 AND WILL REPAY AT RATE OF $1,500 MONTHLY AT INTEREST RATE OF 21% PER ANNUM
DATE OF PAYMENTS
AMOUNT PAID
PAYOR
METHOD
SEPT 9 97
$7,587 (D10,000 @ .758700)
MARIN SOPTA
CASH
$13,887 plus interest
[24] This is an important document in sorting out what amounts Gagro lent to Sopta personally. This document was not acknowledged or confirmed by Sopta. Since it is a summary prepared by Gagro it can fairly and properly be considered strictly against Gagro in assessing what he factored into the total debt owed by Sopta.
[25] There are two figures in the summary prepared by Gagro that are not properly viewed as loans to Sopta. They are as follows:
June 5 95
$3,000
MARIN SOPTA
CHEQUE
Oct 31 95
$750
MARIN SOPTA
CHEQUE
Total $3,750
[26] These cheques were made payable to the Canadian Croatian Artist Society. There is conflicting evidence between Gagro and Sopta as to whether these amounts were intended to be a debt for Sopta personally. On their face, these are donations to a third party entity for which Sopta was the president. I am not satisfied on the evidence that those amounts were intended by the parties to be personal debts owed by Sopta to Gagro.
[27] The reference on Tab 9 to receipt by Gagro of the equivalent of $7,587.00 in German marks is confusing. The root of this confusion on the evidence is that Gagro had also advanced money over time to Ivan Perkovic related to a film enterprise. Gagro claims that in 1997 Sopta had agreed to guarantee the loans to Petrovic. Sopta denies this. The independent witness Novak testified that Sopta signed as a witness to the Petrovic loan and not as a guarantor.
[28] Mr. Novak was a long-time friend of both parties. In his testimony he seemed genuinely sad to see the long standing dispute that separated the former friends Gagro and Sopta. I did not detect any animus by Novak towards either party. I accept Novak as a truthful and fair witness.
[29] Based significantly on the evidence of Novak, I find the following:
(a) Sopta acknowledged being indebted to Gagro as of April 1997 in the amount of $19,690.00.
(b) Sopta did not guarantee any loans by Gagro to Petrovic.
(c) The two payments totalling $3,750.00 dated June 5, 1995 and October 31, 1995 to the Canadian Croatian Artist Society should be deducted from the amount owed by Sopta as of April 1997. Thus the total owing as of that date would be $17,724.00. There have been no payments since then.
result
[30] The plaintiff is entitled to judgment in the amount of $17,724.00 with pre and post judgment interest at the rate of 21% from September 9, 1997.
[31] I will consider brief written submissions (no more than three pages) to be received by September 22, 2014.
B. P. O’Marra J.
Released: September 8, 2014
COURT FILE NO.: CV-09-384392
DATE: 20140908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DARKO GAGRO
Plaintiff
– and –
MARIN SOPTA
Defendant
JUDGMENT
B. P. O’Marra J.
Released: September 8, 2014