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