Bukewitsch v Goodman - [2020] TASSC 31

[2020] TASSC 31

COURT: SUPREME COURT OF TASMANIA

CITATION: Bukewitsch v Goodman [2020] TASSC 31

PARTIES: BUKEWITSCH, Marie Lynette

(by her litigation guardian Troy Bukewitsch)
v
GOODMAN, Stanley
JACOBS, Anthony (Tony) Ronald

FILE NO:  2846/2018
DELIVERED ON:  3 July 2020
DELIVERED AT:  Hobart
HEARING DATES:  2, 3 March, 2, 7 April 2020
JUDGMENT OF:  Marshall AJ

CATCHWORDS:

Evidence – Proof – Burden of proof – Generally – Acknowledgment of deed under seal – Defendant must allege and prove payment by way of discharge as a defence to an action for indebtedness in respect of executed consideration – No documentary proof that payment was made - Failure of creditor to complain did not displace the onus – Defendants failed to satisfy the onus – Defendants' failure to subpoena bank documents a significant factor.

Young v Queensland Trustees Limited (1956) 99 CLR 560, followed.
Aust Dig Evidence [1203]

Deeds – Deed poll – Unilateral acknowledgment of debt under seal – Deed a speciality – Argued debt merged in deed and deed's terms conclusive.

Netglory Pty Ltd v Caratti [2013] WASC 364, followed.
Aust Dig Deeds [11.5]

Interest – Agreements to pay interest – Where no clear agreement to pay compound interest, interest is taken to be simple interest

TSB Developments Pty Ltd v HCH & K Fisheries Pty Ltd [2003] TASSC 136; Agricultural and Rural Finance Pty Ltd v Atkinson [2010] NSWSC 1396, followed.
Aust Dig Interest [1]

Limitation of Actions – Limitation of particular actions – Specialty debts and debts on statutes – Accrual of cause of action and when time begins to run – Cause of action only arose when demand for payment was made under the deed within the terms of the deed.

Limitation Act 1974 (Tas), ss 4(3), 29(4).
Barker v Duke Group Limited (in Liq) [2005] SAFC 81, 91 SASR 167, followed.
Krueger v Jansen [1991] NTSC 27, not followed.
Aust Dig Limitation of Actions [1037]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC
             First Defendant:  W A Ayliffe SC
             Second Defendant  In person
Solicitors:
             Plaintiff:  Blissenden Lawyers
             First Defendant:  E R Henry Wherrett & Benjamin

Judgment Number: [2020] TASSC 31
Number of paragraphs: 88

Serial No 31/2020
File No 2846/2018

MARIE LYNETTE BUKEWITSCH (By her litigation guardian Troy Bukewitsch)
v STANLEY GOODMAN and ANTHONY (TONY) RONALD JACOBS

REASONS FOR JUDGMENT MARSHALL AJ

3 July 2020

By writ filed on 22 October 2018, the plaintiff claims against the defendants a sum of $902,669.90 being money allegedly due and owing to the plaintiff by the defendants by virtue of a deed dated 10 March 1987 ("the deed"). The claim includes interest to 30 September 2018, with interest at the rate of 15% compound per annum. A demand was made for payment on 28 June 2018 and no payment was made after the demand.
It is common ground that by the deed dated 10 March 1987, made under seal, the defendants, as well as the now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bukewitsch v Goodman

Details

AGLC: Bukewitsch v Goodman [2020] TASSC 31
Case: [2020] TASSC 31
Decision Date: 3 July 2020

CaseChat Overview and Summary

Bukewitsch v Goodman is a case heard by the Supreme Court of Tasmania where the plaintiff, Bukewitsch, sought to recover a debt from the defendants, Goodman. The debt arose from an executed deed under seal, and the defendants claimed that they had paid the debt. The primary legal issues for the court were whether the defendants could discharge the debt by proof of payment and whether the interest on the debt was simple or compound. Additionally, the court had to determine the point at which the limitation period began to run.

The court held that the defendants bore the burden of proving they had discharged the debt, which they failed to do as they did not provide any documentary evidence of payment and did not subpoena relevant bank documents. The court also concluded that since there was no clear agreement to pay compound interest, the interest was to be simple. Regarding the limitation period, the court found that the cause of action arose when the plaintiff demanded payment under the terms of the deed. The court followed Barker v Duke Group Limited in determining that the limitation period started running from the date of the demand.

The court's decision resulted in a judgment for the plaintiff for the full amount of the debt plus interest. The court also awarded the plaintiff a significant percentage of her costs. The judgment is a clear reminder of the importance of documentary evidence in legal proceedings and the consequences of failing to discharge the burden of proof.

Orders

Orders of the court

Orders:

1 That there be judgment for the plaintiff against the defendants in the sum of $81,973.41 plus interest at the daily rate of $6.21 until payment.

2 That the plaintiff have 92.5% of her costs of the proceeding, as taxed or as agreed.

3 I certify the Senior Counsel.

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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