Binetter v Binetter

Case [2022] NSWCA 169


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Binetter v Binetter [2022] NSWCA 169
Hearing dates: 8 August 2022
Date of orders: 1 September 2022
Decision date: 01 September 2022
Before: White JA at [1];
Mitchelmore JA at [2];
Basten AJA at [3]
Decision:

(1)   Dismiss the appeal from the judgment and orders made in the Common Law Division.

(2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

LIMITATION OF ACTIONS – debt – limitation period – suspension of limitation period – lender under relevant disability – mental impairment – whether impairment rendered lender incapable of, or substantially impeded in, managing her affairs in relation to initiating proceedings to recover loan – whether enduring powers of attorney and enduring guardianship prevent finding of disability – Limitation Act 1969 (NSW), ss 11, 52

EVIDENCE – documentary evidence – business records – medical reports – records of treating health professionals – admissibility – whether other party can require party tendering record to call expert for cross-examination – Uniform Civil Procedure Rules 2005 (NSW), r 31.29

EVIDENCE – evidence of disability – solicitor for deceased lender who took instructions at material time not called – whether Jones v Dunkel inference available – whether solicitor-client privilege justified absence

Legislation Cited:

Evidence Act 1995 (NSW), s 69

Limitation Act 1969 (NSW), ss 11, 14, 52, 63, 69

Uniform Civil Procedure Rules 2005 (NSW), rr 31.17, 31.18, 31.28, 31.29; Pt 31, Div 2

Cases Cited:

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kotulski v Attard [1981] 1 NSWLR 115

Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162

Olive v Johnstone [2006] NSWCA 21

State of New South Wales v Harlum [2007] NSWCA 120

Texts Cited:

J Wilterdink, “Mental status scales to evaluate cognition” (2020) UpToDate

D Zheng et al, “Longitudinal Associations Between Visual Impairment and Cognitive Functioning” (2018) 136(9) JAMA Ophthalmol 989

Category:Principal judgment
Parties: Steven Binetter (Appellant)
Ronald Binetter (Respondent)
Representation:

Counsel:
D B Studdy SC / C D Freeman (Appellant)
G Sirtes SC / C P O’Neill (Respondent)

Solicitors:
Braddon Marx Lawyers (Appellant)
Eakin McCaffrey Cox (Respondent)
File Number(s): 2021/00292457
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law
Citation:

[2021] NSWSC 1249

Date of Decision:
01 October 2021
Before:
Beech-Jones J
File Number(s):
2018/166618

HEADNOTE

[This headnote is not to be read as part of the judgment]

In May 2018, Mrs Ida Wolff, by her tutor, commenced proceedings against her nephew Mr Ronald Binetter, to recover a loan of $1,000,000 made in September 2010. Mrs Wolff died in September 2018 at 98 years of age and Mr Steven Binetter, as legal representative of her estate, continued the proceedings.

The six-year limitation period for the recovery of debts had expired in September 2016 pursuant to ss 14 and 63 of the Limitation Act 1969 (NSW). The plaintiff, however,…

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AGLC
Binetter v Binetter [2022] NSWCA 169
Case
[2022] NSWCA 169
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over a loan made by the deceased lender, Mrs. Binetter, to her son, the appellant. The respondent, as executor of Mrs. Binetter's estate, sought to recover the outstanding debt. The central issue was whether the limitation period for recovering the debt had been suspended due to Mrs. Binetter's alleged mental impairment, rendering her unable to manage her affairs. The appellant argued that the limitation period had expired, and the debt was irrecoverable.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether Mrs. Binetter suffered from a "relevant disability" within the meaning of section 11 of the *Limitation Act 1969* (NSW) at the time the debt became due, such that her mental impairment substantially impeded her ability to manage her affairs in relation to initiating proceedings. Secondly, the court considered the admissibility of certain documentary evidence, specifically medical reports, and whether the appellant could be compelled to call the treating health professionals for cross-examination under rule 31.29 of the *Uniform Civil Procedure Rules 2005* (NSW). The court also considered the potential application of the *Jones v Dunkel* inference regarding the absence of the deceased lender's solicitor.

The Court of Appeal found that the evidence did not establish that Mrs. Binetter suffered from a relevant disability as defined by the *Limitation Act*. While acknowledging she had some cognitive difficulties, the court held that these did not rise to the level of substantially impeding her ability to manage her affairs concerning the loan. The existence of enduring powers of attorney and guardianship, while relevant to her general affairs, did not, in this context, preclude a finding of capacity to pursue legal action for the debt. Regarding the admissibility of medical reports, the court determined that the appellant had not established grounds to require the treating practitioners to be called for cross-examination.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the appeal from the judgment and orders made in the Common Law Division.

(2) Order that the appellant pay the respondent’s costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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