Cameron (as Executrix of the Will of Alexander Donald Robert Gordon Cameron (Dec)) v Murdoch (as Administratrix of the Estate of James Cameron (Dec))
[2003] WASC 264 (S)
CAMERON (as Executrix of the Will of ALEXANDER DONALD ROBERT GORDON CAMERON (DEC)) & ORS -v- MURDOCH (as Administratrix of the Estate of JAMES CAMERON (DEC)) & ORS [2003] WASC 264 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 264 (S) | |
| Case No: | CIV:1581/1980 | 6 OCTOBER & 25 NOVEMBER 2003, 11 FEBRUARY 2004 | |
| Coram: | MASTER NEWNES | 19/12/03 | |
| 27/02/04 | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application to re-open granted but original decision affirmed | ||
| B | |||
| PDF Version |
| Parties: | EDITH MARY MAUD CAMERON (as Executrix of the Will of ALEXANDER DONALD ROBERT GORDON CAMERON (DEC)) CHARLES McKENZIE CAMERON EVAN THOMAS CAMERON BARBARA MARY CAMERON CHRISTINE ELIZABETH POWELL LADY BARBARA MARSHALL MURDOCH (as Administratrix of the Estate of JAMES CAMERON (DEC)) ALEXANDRA JANE STANTON KIM GORDON STANTON (as Executors by succession of the Will of JOHN EVANDER JAMES CAMERON (DEC)) KIM GORDON STANTON (as Executors of the Will of DOUGALD CAMERON (DEC)) KIM GORDON STANTON (as Executors of the Will of MARY JANE ISABELLA CAMERON (DEC)) LADY BARBARA MARSHALL MURDOCH BARBARA MARSHAL MURDOCH (as Executrix of the Will of CHARLES LESLIE EDWARD KEITH CAMERON (DEC)) MARTIN CAMERON THOMPSON (as Executor of the Will of LILIAN EFFIE THOMPSON (DEC)) DOLINA MARY FEATHERBY OLGA MORRISON LINDON (as Administratrices of the Estate of JESSIE DOLINA ELLEN PETROFF (DEC)) EVAN JOHN CAMERON (as Administrators of the Estate of CATHERINE ANNE LOCKHEAD (DEC)) |
Catchwords: | Practice and procedure Application to re-open submissions Principles to be applied Turns on own facts Limitation of actions s 32 Limitation Act Revival of liability Whether part-payment must imply promise to pay balance of debt |
Legislation: | Limitation Act 1935 (WA), s 32 Limitation Act 1939 (UK), s 23(4) |
Case References: | Bucknell v Commercial Banking Co of Sydney (1937) 58 CLR 155 Cameron (as Executrix of the Will of Alexander Donald Robert Gordon Cameron (Dec)) & Ors v Murdoch (as Administratrix of the Estate of James Cameron (Dec)) & Ors [2003] WASC 264 Davies v Edwards 155 ER 839 Harlock v Ashbury [1882] 19 Ch D 539 Hoad v Nationwide News Pty Ltd & Ors, unreported; SCt of WA (Anderson J; Library No 970043; 13 February 1997 Morgan v Rowlands (1872) LR 7 QB 493 Norman v Norman (1992) 6 WAR 372 Power v Kenny [1977] WAR 87 Re Footman Bower & Co Ltd [1961] Ch 433 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Spencer v Hemmerde (1922) 2 AC 507 Stage Club Ltd v Miller's Hotels Pty Ltd (1981) 150 CLR 535 Surrendra Overseas Ltd v Government of Sri Lanka (1977) 2 All ER 481 Taylor v Hollard [1902] 1 KB 676 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 27 FEBRUARY 2004 FILE NO/S : CIV 1581 of 1980 BETWEEN : EDITH MARY MAUD CAMERON (as Executrix of the Will of ALEXANDER DONALD ROBERT GORDON CAMERON (DEC))
- First Plaintiff
CHARLES McKENZIE CAMERON
EVAN THOMAS CAMERON
BARBARA MARY CAMERON
CHRISTINE ELIZABETH POWELL
Second Plaintiffs
AND
LADY BARBARA MARSHALL MURDOCH (as Administratrix of the Estate of JAMES CAMERON (DEC))
First Defendant
(Page 2)
- ALEXANDRA JANE STANTON
KIM GORDON STANTON (as Executors by succession of the Will of JOHN EVANDER JAMES CAMERON (DEC))
Second Defendants
ALEXANDRA JANE STANTON
KIM GORDON STANTON (as Executors of the Will of DOUGALD CAMERON (DEC))
Third Defendants
ALEXANDRA JANE STANTON
KIM GORDON STANTON (as Executors of the Will of MARY JANE ISABELLA CAMERON (DEC))
Fourth Defendants
LADY BARBARA MARSHALL MURDOCH
Fifth Defendant
BARBARA MARSHAL MURDOCH (as Executrix of the Will of CHARLES LESLIE EDWARD KEITH CAMERON (DEC))
Sixth Defendant
MARTIN CAMERON THOMPSON (as Executor of the Will of LILIAN EFFIE THOMPSON (DEC))
Seventh Defendant
DOLINA MARY FEATHERBY
OLGA MORRISON LINDON (as Administratrices of the Estate of JESSIE DOLINA ELLEN PETROFF (DEC))
Eighth Defendants
CHARLES McKENZIE CAMERON
EVAN JOHN CAMERON (as Administrators of the Estate of CATHERINE ANNE LOCKHEAD (DEC))
Ninth Defendants
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Catchwords:
Practice and procedure - Application to re-open submissions - Principles to be applied - Turns on own facts
Limitation of actions - s 32 Limitation Act - Revival of liability - Whether part-payment must imply promise to pay balance of debt
Legislation:
Limitation Act 1935 (WA), s 32
Limitation Act 1939 (UK), s 23(4)
Result:
Application to re-open granted but original decision affirmed
Category: B
(Page 4)
Representation:
Counsel:
First Plaintiff : No appearance
First-named Second Plaintiff : Mr R H B Pringle QC & Mr B L Oakley
Second-named Second Plaintiff : No appearance
Third-named Second Plaintiff : No appearance
Fourth-named Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendants : No appearance
Third Defendants : No appearance
Fourth Defendants : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendants : Mr B W Duckham
Ninth Defendants : No appearance
Solicitors:
First Plaintiff : No appearance
First-named Second Plaintiff : Granich Partners
Second-named Second Plaintiff : No appearance
Third-named Second Plaintiff : No appearance
Fourth-named Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendants : No appearance
Third Defendants : No appearance
Fourth Defendants : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendants : Duckham & Co
Ninth Defendants : No appearance
(Page 5)
Case(s) referred to in judgment(s):
Bucknell v Commercial Banking Co of Sydney (1937) 58 CLR 155
Cameron (as Executrix of the Will of Alexander Donald Robert Gordon Cameron (Dec)) & Ors v Murdoch (as Administratrix of the Estate of James Cameron (Dec)) & Ors [2003] WASC 264
Davies v Edwards 155 ER 839
Harlock v Ashbury [1882] 19 Ch D 539
Hoad v Nationwide News Pty Ltd & Ors, unreported; SCt of WA (Anderson J; Library No 970043; 13 February 1997
Morgan v Rowlands (1872) LR 7 QB 493
Norman v Norman (1992) 6 WAR 372
Power v Kenny [1977] WAR 87
Re Footman Bower & Co Ltd [1961] Ch 433
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Spencer v Hemmerde (1922) 2 AC 507
Stage Club Ltd v Miller's Hotels Pty Ltd (1981) 150 CLR 535
Surrendra Overseas Ltd v Government of Sri Lanka (1977) 2 All ER 481
Taylor v Hollard [1902] 1 KB 676
Case(s) also cited:
Nil
(Page 6)
1 MASTER NEWNES: The first-named second plaintiff ("Mr Cameron") applied by chamber summons of 1 August 2003 to set aside the order obtained by the eighth defendants for his examination as a judgment debtor. Mr Cameron contended that there was no enforceable debt owing by him to the eighth defendants because the debt relied upon was statute-barred under s 32 of the Limitation Act. I heard that application on 6 October 2003 and 25 November 2003, and delivered reasons for judgment on 19 December 2003: Cameron (as Executrix of the Will of Alexander Donald Robert Gordon Cameron (Dec)) & Ors v Murdoch (as Administratrix of the Estate of James Cameron (Dec)) & Ors [2003] WASC 264. I held that the debt was not statute-barred.
2 Mr Cameron now applies to re-open submissions on the ground that he has not had an opportunity to be heard on one aspect of the matter, namely whether under s 32 of the Act time will only begin to run afresh if a part-payment carries with it an express or implied promise to pay the balance of the debt.
3 I do not propose to canvass in detail the matters set out in my earlier reasons and these reasons should be read with my reasons in [2003] WASC 264. Suffice it to say that, as a result of an unsuccessful appeal to the Privy Council, Mr Cameron and the other applicants in the appeal became liable to, among others, the eighth defendants, for the costs of the appeal. Those costs were taxed on 5 June 1986 and allowed at ₤12,063.84. On 31 August 1992, an order was made by this Court granting leave to the eighth defendants to issue execution against one of the other judgment debtors, Mrs Powell. On 31 August 1992, Mrs Powell reached a settlement with the eighth defendants and that settlement was recorded in a deed of 23 December 1992.
4 In the deed, Mrs Powell acknowledged that the sum of ₤12,063.84 remained due and payable by the judgment debtors to the eighth defendants and agreed to pay the sum of $12,000 in consideration of a release in respect of the balance of the debt. That sum was apparently paid at about that time.
5 Mr Cameron contended that the claim against him by the eight defendants for the balance of the debt was statute-barred pursuant to s 32 of the Limitation Act1932 (WA), more than 12 years having elapsed since the right to the judgment sum accrued to the eighth defendants. The eighth defendants argued that the payment of $12,000 made by Mrs Powell pursuant to the deed constituted a payment "of some part of the principal sum" within s 32 of the Act, as a result of which the eighth
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- defendants were entitled to enforce the debt for a further period of 12 years from the date of that payment.
6 It was submitted on behalf of Mr Cameron, among other things, that the payment by Mrs Powell was not a payment within the meaning of s 32. Relevantly for present purposes, in his written outline of submissions on the original application, Senior Counsel for Mr Cameron said:
"The deed demonstrates that the payment of $12,000 was not a part-payment in the well established meaning of the term in the context of limitation of actions, namely, as expressly or impliedly acknowledging liability to pay the balance of the claim or some definite part of such balance; cf. - Bucknell v Commercial Banking Company of Sydney (1937) 58 CLR 155, 163, Stage Club Ltd v Miller's Hotels Pty Ltd (1981) 150 CLR 535, 544, 560-1, Surrendra Overseas Ltd v Government of Sri Lanka (1977) 1 WLR 565, 575-7."
7 On the application to re-open, Senior Counsel for Mr Cameron submitted that, by the submission to which I have referred, it was evident that what was contended by Mr Cameron was that s 32 imported the common law principle that a part-payment started time running afresh only if it constituted both an acknowledgement of the debt and a promise to pay the balance. He argued that, on the hearing of the application to set aside the order for examination, the eighth defendants had simply submitted that the payment by Mrs Powell was a part payment within s 32 and had not taken issue with the proposition that under s 32 both an acknowledgement of the debt and a promise to pay the balance must be found.
8 In fact, the eighth defendants simply did not expressly advert to the issue now sought to be argued on behalf of Mr Cameron.
9 In my reasons for judgment, I concluded that such a promise to pay was not a requirement of s 32 and it was sufficient that by the payment it was acknowledged that the debt remained due and owing. I concluded that the payment by Mrs Powell was such an acknowledgement.
10 Senior Counsel for Mr Cameron seeks to re-open submissions to argue the question of whether a promise to pay the balance of the outstanding debt is required by s 32. The application was opposed by the eighth defendants who argued that the matter was squarely in issue at the
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- original hearing and it was simply a point that counsel for Mr Cameron had not developed in argument. It was too late to do so now.
11 I accept that, at the original hearing, Senior Counsel for Mr Cameron understood that it was not in issue that the common law principle to which I have referred applied to a payment under s 32 and that the only matter in issue was whether the payment by Mrs Powell met the requirements of that principle. I also accept that counsel for the eighth defendants did not understand the issues to be so limited. Nor did I. It is, however, apparent that there has been a genuine misunderstanding, as a result of which counsel for Mr Cameron did not specifically address that issue.
12 The current position is that no order has been extracted and it is not suggested that anyone has acted on the reasons for judgment that I delivered on 19 December 2003.
13 I understood it was not in contention that in these circumstances the Court has the power to re-open submissions in an appropriate case. It is, of course, a power to be used sparingly. In Norman v Norman (1992) 6 WAR 372, Murray J, having concluded that, as the order concerned had not been extracted, it could be recalled, said:
"… but as has been pointed out, that is a discretionary power which I am required to exercise judicially rather than capriciously. I think it is also a power that should be exercised sparingly, consistently with the general principle that once the proceedings have been concluded in their hearing and final orders pronounced, that should be regarded as an end to the matter unless something affirmatively can be brought to the attention of the Court to show that an injustice would be done by allowing the order to remain as pronounced."
- See also Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 265 and Hoad v Nationwide News Pty Ltd & Ors, unreported; SCt of WA; Anderson J; Library No 970043; 13 February 1997.
14 The question, then, is whether an injustice would be done if the finding I made were to stand. To determine that question it is necessary to turn to the issue that Mr Cameron seeks to argue.
15 The common law rule relied on by Mr Cameron has considerable antiquity. It is, however, sufficient for present purposes to refer to the decision of the House of Lords in Spencer v Hemmerde (1922) 2 AC 507.
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- There the issue was whether a letter written by the debtor to the creditor was a sufficient acknowledgement of the debt to take it out of the Statute of Limitations. The statute concerned was 21 Jac 1, c 16, s 3 ("Statute of James I") which, relevantly, provided that " … all actions of debt grounded upon any lending or contract without specialty … shall be commenced or sued … within 6 years next after the cause of such action … and not after". The statute made no reference to an acknowledgement or part-payment of a debt or the effect of such acknowledgement or part-payment. Nevertheless, as Viscount Cave observed, it had been held in a series of cases that an express promise to pay a debt, or even a simple acknowledgement of the debt - such acknowledgement implying a promise to pay - was sufficient to take the debt out of the statute. Moreover, a promise to pay the debt would be implied from a general acknowledgement, except where that was inconsistent with the terms or circumstances of the acknowledgement.
16 This principle was, as Viscount Cave noted, "originally judge made law", or as Lord Sumner put it rather more trenchantly, the result of " … decisions of three centuries … decorously disregarding an Act of Parliament". The doctrine had, however, finally received statutory recognition in 9 Geo 4, c 14 ("Lord Tenterden's Act") which, after referring to the Statute of Limitations, provided:
"In actions of debt or upon the case grounded upon any simple contract no acknowledgement or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactment or either of them, or to deprive any party of the benefit thereof, unless such acknowledgement or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby."
- In Spencer v Hemmerde (supra), Viscount Cave said (at 513):
"This enactment [Lord Tenterden's Act] refers to an 'acknowledgement or promise' as if either would be sufficient to take a case out of the statute. But the words of the Act are negative only, and I think it clear that the acknowledgement there referred to must be an acknowledgement which but for this Act would have been sufficient to take the case out of the statute of James, that is to say, an acknowledgement implying a promise to pay; and it has always been so held.
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- Since the case of Tanner v Smart (1827) 6 B. & C. 603 the law as there laid down has been uniformly accepted, and it must be held to be settled law (1) that a written promise to pay a debt given within six years before action is sufficient to take the case out of the operation of the statute of James I; (2) that such a promise is implied in a simple acknowledgement of the debt; but (3) that where such an acknowledgement is couple with other expressions, such as a promise to pay at the future time or on a condition or an absolute refusal to pay, it is for the court to say whether those other expressions are sufficient to qualify or negative the implied promise to pay."
17 Lord Sumner noted (at 526) that in the case of a part-payment, the question was whether the payment was part, so as to imply an intention to promise to pay the rest, or was payment of that sum not as part, but for other reason.
18 The principle laid down in Tanner v Smart (supra) in relation to an acknowledgement, namely that it must be such that a promise to pay the debt could be inferred, applied to cases of part payment: Morgan v Rowlands (1872) LR 7 QB 493 at 498, Davies v Edwards 155 ER 839.
19 In Bucknell v Commercial Banking Co of Sydney (1937) 58 CLR 155, Dixon J said, at 163 - 4:
"The rules of law and construction which govern the revival by acknowledgement of debts against which time has run or is running under 21 Jac.1. c 16, sec.3, have been fully explained in the House of Lords in Spencer v Hemmende. Hepburn v McDonnell (1918) 25 CLR 199 contains an explanation to the same effect. To make it clear how they operate in the present case a very brief statement will suffice. An express promise in writing by the debtor to pay revives his liability. But the liability is revived only according to the tenor of the promise. If it is so expressed as to be conditional or subject to limitations, the conditions must be fulfilled before the liability become enforceable and the limitations must be observed."
20 The position in relation to the Limitation Act1939 (UK) fell for consideration in Re Footman Bower & Co Ltd [1961] Ch 433 and again in Surrendra Overseas Ltd v Government of Sri Lanka (1977) 2 All ER 481. Those cases concerned s 23(4) of the Limitation Act1938 (UK) which, relevantly, provided:
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- "Where any right of action has accrued to recover any debt or other liquidated pecuniary claim … and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement for the last payment."
21 InRe Footman Bower & Co Ltd (supra) the question was whether, where there are distinct debts, some of which are statute-barred and some are not, and the debtor makes a payment which the creditor can appropriate as he chooses, the creditor may appropriate the payment to a statute-barred debt so as to revive his remedies in respect of the balance of that debt. Buckley J said:
"… [such an appropriation], under the law before the Limitation Act, 1939, did not revive his remedies in respect of any unsatisfied balance of that statute-barred debt because no promise on the part of the debtor to pay the balance could be inferred from the circumstances. … For a payment to have this effect it was necessary that it should amount to an acknowledgement of the debt and import a new promise to pay the outstanding balance. The mere act of the creditor appropriating a payment to a statute-barred debt could not have this effect, for such an acknowledgement and promise could only come from the debtor. Since the enactment of the Limitation Act 1939, the position has been different, for s 23(4) now contains a statutory provision applicable to simple contract debts whereby any payment in respect of a debt will make time start to run afresh in respect of that debt. There is no longer need to establish a new promise to pay. In my judgment, however, one must still look at the act and intention of the debtor to see whether the payment is made in respect of the particular debt. Payment in s 23(4) is dealt with in close connection with acknowledgement. Just as an acknowledgement can only acquire that character by the act of the debtor or his agent, so also, I think, a payment for the purposes of s 23(4) can only acquire the characteristics of being 'in respect of' the debt by the act of the debtor or his agent."
22 That passage was referred to with approval in Surrendra Overseas Ltd v Government of Sri Lanka where it was held that the payment in question did not revive the debt claimed by the plaintiff because it was not a part payment of the debt, but was expressed to be payment only of the
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- amount which the defendant admitted to be due, after deduction of the defendant's set-off and counterclaim. Kerr J held that "a part-payment, like an acknowledgement, can only revive the cause of action and start time running afresh if it provides evidence in the form of an admission by the debtor that the debt remains due despite the passage of time". It is clear that Kerr J did not consider it was necessary that the payment imply any promise to pay the outstanding balance.
23 In Stage Club Ltd v Miller's Hotels Pty Ltd (1981) 150 CLR 535, the question was whether the reference in the balance sheet of a debtor to the creditor as a secured creditor constituted an acknowledgement of the debt under s 54 of the Limitation Act1969 (NSW). That, relevantly, provided:
" A person confirms a cause of action if, but only if, he (i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgement is made; or (ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made."
24 Gibb CJ distinguished Bucknell v Commercial Banking Co of Sydney Ltd (supra) on the ground that there the Court was concerned with the operation of the statute of James I, where a new promise to pay must be capable of being inferred from an acknowledgement of the debt. His Honour went on (at 544):
"Under the Limitation Act 1969 it is not necessary that any promise to pay should be express or implied. What is necessary is an acknowledgement of the existence of the debt … Although under the Limitation Act 1969, it is no longer necessary that there should be a promise to pay, it is still necessary, in my opinion, that an acknowledgement should admit or recognise the present existence of a cause of action; in other words, where the claim is for payment of a debt, an acknowledgement, to be sufficient, must recognise the present existence of the debt. I respectfully agree with the statement of Kerr J in Surrendra Overseas Ltd v Sri Lanka (supra) that 'to acknowledge a claim, as a matter of ordinary English signifies the admission that is due'. There is no acknowledgement of a debt unless there is 'an admission that there is a debt; outstanding or unpaid: Good v Parry [1963] 2 QB 418 at 423."
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25 It was submitted by Senior Counsel for Mr Cameron that those cases were not on point because in both the Limitation Act 1938 (UK) and the Limitation Act 1969 (NSW), care had been taken to avoid the use of the well established term "part payment" or similar language, and in each case the statute spoke of a "payment in respect of" an obligation. That is to be compared to s 32 of the Limitation Act (WA) which speaks of payment of "some part of the principal money, or some interest …". It was argued that in the former statutes a new test, namely a "payment in respect of" a debt, had been introduced, whereas in Western Australia the test of a part payment, incorporating the long standing common law principle, had been retained.
26 Senior Counsel for Mr Cameron referred to Davies v Edwards (supra), which, it was submitted, had been followed in two subsequent decisions, Taylor v Hollard [1902] 1 KB 676 which concerned s 8 of the Real Property Limitation Act 1874 (37 & 38 Vict c 57), which is essentially in the same terms as s 32 of the Limitation Act 1935 (WA), and Power v Kenny [1977] WAR 87 which concerned s 32 of the Limitation Act.
27 It was argued that those cases supported the view that the common law principle requiring an express or implied promise to pay the balance of the debt was imported into s 32 of the Limitation Act 1935 (WA). I do not, however, think that that is borne out by an examination of the decisions concerned.
28 It is true that in Davies & Ors v Edwards & Ors (supra) it was held that in order for a payment to take a debt out of the Statute of Limitations, the payment must have been on account of the debt and it must include a promise to pay the balance. That case, however, was decided in 1851 when there was no statutory provision that a part-payment would start time running afresh under the Statute of Limitations. Lord Tenterden's Act required that a promise had to be in writing to take the case out of the operation of the Statute of Limitations but otherwise provided that "nothing therein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever." The Court was therefore concerned with the common law principle, unaffected by statute.
29 In Taylor v Hollard (supra) the plaintiff recovered judgment in the High Court in England against the defendant for the sum of ₤15,067/9/11. Subsequently, the plaintiff sought to enforce the judgment in the Courts of the South African Republic, but there, by reason of certain usury laws
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- then in force, was only able to recover judgment in a total amount of ₤9,635/4/6. Following the defendant's bankruptcy, the trustees of the defendant's estate paid the sum of ₤9,635/4/6 to the plaintiff. It was argued by the plaintiff that this payment took the original debt of ₤15,067/9/11 out of the Statute of Limitations and the plaintiff was entitled to recover the balance from the defendant. It was held by Jelf J that the payment was made, not on account of the English judgment, but in satisfaction of the South African judgment and therefore it did not take the debt out of the Statute of Limitations. Jelf J also found that it was impossible to infer from the payment by the trustees any acknowledgement by the defendant of a further liability or promise on his part to pay the balance of the judgment. He referred to Davies v Edwards (supra) for the principle that a payment by a trustee in bankruptcy is not a payment within the statute. Jelf J referred to a submission by the plaintiff that, under the Real Property Limitation Act, a part-payment was of itself sufficient without the necessity of showing it was made under circumstances from which an admission of liability and a promise to pay could be inferred. His Honour rejected that submission and referred to the judgment of Brett LJ in Harlock v Ashbury [1882] 19 Ch D 539 at 548 as follows:
"In all statutes of limitations the principle on which they are founded is, that in those cases in which a payment is allowed to take the case out of the operation of the Statute of Limitations, it must be such a payment as amounts to an acknowledgement of liability."
31 In Harlock v Ashbury (supra) the question was whether payment of rent by a tenant to a mortgagee who had exercised the right to demand the rent was a payment of principal or interest under the mortgage which revived the debt of the mortgagor. It was held that it was not on, among others, the ground that it was not a payment by the mortgagor or his agent, or any other person bound to make the payment of principal or interest on the mortgagor's behalf. Brett LJ held, in the passage cited by Jelf J, that the payment must be made by the mortgagor or someone on his behalf because it must be such a payment as amounts to an acknowledgement of
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- liability by the mortgagor. There is no reference in any of the judgments in Harlock v Ashbury (supra) to a requirement that there also be an express or implied promise to pay the balance of the debt.
32 I do not think that Power v Kenny (supra) provides any support for the argument advanced on Mr Cameron's behalf. In that case, the question was whether payments made to the plaintiffs from the defendant's bankrupt estate revived the original judgment debt. It was held that they did not, as they were not voluntary payments acknowledging the existence of the remainder of the debt. Davies v Edwards (supra) and Taylor v Hollard (supra) were relied upon simply as authority for that principle. There is no reference in Power v Kenny (supra) to any requirement under s 32 for a payment also to imply a promise to pay the balance of the debt.
33 In my view, the common law doctrine has no room for operation in light of the language of s 32. That section does not save the operation of the common law doctrine but rather specifically prescribes the circumstances in which time will commence to run afresh. In that respect it may be contrasted with s 44 of the Limitation Act (WA), which deals with the various limitation periods prescribed by s 38 and, so far as relevant, provides:
"(1) Except as expressly provided in this Act, nothing in section 38 contained shall take away or lessen the effect of any acknowledgment or promise, or of any acknowledgment by part payment or satisfaction on account of principal or interest due, and except as aforesaid any such acknowledgment or promise shall have the same effect as if this Act had not been passed."
34 I also do not consider that anything turns on the differences between the language of s 32 and that of the legislation considered in Re Footman Bower & Co Ltd, Surrendra Overseas Ltd v Government of Sri Lanka (supra), and Stage Club Ltd v Miller's Hotels Pty Ltd (supra) respectively. What is significant is that, unlike the earlier cases, in those cases there was a statutory provision which specifically provided for the circumstances in which time would begin to run afresh in respect of a debt. Section 32 is to the same effect. I do not think that, in the present context at least, there is a material difference between a payment "in respect" of a debt and a payment of "some part" of a debt. In my view, the common law rule which was applied in the absence of such provisions has no part to play in the application of s 32. Section 32 has effect
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- according to its terms and, to the extent that the common law required an express or implied promise to pay the balance of the debt, s 32 departs from that rule.
35 I therefore remain of the view that, under s 32 of the Limitation Act 1935 (WA), it is not necessary to find in any payment any express or implied promise to pay the outstanding balance. The payment must, however, admit or recognise that the debt is outstanding and unpaid.
36 It follows that I do not consider any injustice would be done were the finding I made on 19 December 2003 to stand.
37 I will hear the parties on the precise form of orders and on costs.
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