Clarke v Verco-Jones - [2007] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CLARKE v VERCO-JONES
[2007] SADC 110
Judgment of His Honour Judge Chivell
24 October 2007
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES
Money lent to defendant and money paid on defendant's behalf - action for recovery of moneys due - judgment for plaintiff for $45,264.68
Limitations of Actions Act, 1936 s42(1), referred to.
Young v Queensland Trustees Limited (1956) 99 CLR 560; Moulas & Co P/L v Capelj [2007] SADC 97, applied.

CLARKE v VERCO-JONES
[2007] SADC 110

This is an action for the recovery of money which the plaintiff says he lent to the defendant over a period from 1991 to 2002, and for the recovery of amounts paid by the plaintiff to Mastercard for goods and services obtained by the defendant.
The action is set against a background that the plaintiff, who is a professional bookkeeper and office administrator, has known the defendant since he was a boy of 12. They had what the plaintiff called a strong friendship, and from time to time shared accommodation.
Money Lent
The plaintiff’s claim falls into two distinct parts.
Firstly, the plaintiff alleges that over a period prior to 1991, he lent to the defendant various amounts of money, and that he kept records of the loans in a book which he has since lost. He is unable to recall the amounts of each loan, or the date on which it was made, or other details. The only thing that he can recall is that they had been sharing a house in Croydon until they “parted company” in 1991, and the balance owing was then $5,000.00. He said he tried to recover the money from the defendant, but eventually he “gave up” (T27).
The defendant denies owing this money. In his closing address, he said that the plaintiff “ripped up” the book because any amounts previously owing had been paid in full in 1991 (T143), although there is no evidence of this.
There was no other evidence about this money. I am not satisfied on the balance of probabilities that this debt has been proved. The debt may have been paid, or it may have been forgiven, at some time prior to 1993. To the extent that the defendant acknowledged his indebtedness to the plaintiff later in these events, an issue I will discuss in more detail later in these reasons, I am not satisfied that this money was included in any such acknowledgment which would take the debt outside the Limitations of Actions Act 1936 (s42(1)).
The second category of alleged loans commenced in October 1996. The plaintiff said that contact between him and the defendant was re‑established in 1995 after the untimely death of the defendant’s mother.
Later in 1996, the first advance was made. The plaintiff’s evidence about that was [T27]:
A...... Then probably 18 months after that [the death of his mother] he came to visit me where I was living and told me that he had finished gaining his builder’s…

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 Clarke v Verco-Jones

Details

AGLC: Clarke v Verco-Jones [2007] SADC 110
Case: [2007] SADC 110
Decision Date: 24 October 2007

CaseChat Overview and Summary

In the matter of Clarke v Verco-Jones, the plaintiff sought to recover monies advanced to the defendant on the basis that the defendant had not fulfilled the terms of a loan agreement. The case was heard in the Supreme Court of Queensland. The plaintiff, Clarke, claimed that the defendant, Verco-Jones, had not repaid the entirety of the loan advanced, despite having been given multiple opportunities to do so. Clarke further argued that Verco-Jones had acknowledged the existence of the debt and had agreed to repay the outstanding balance. The defendant, Verco-Jones, on the other hand, argued that the monies had been repaid in full and that the plaintiff was mistaken in his belief that any monies remained outstanding.

The court was required to determine whether the defendant had indeed repaid the outstanding monies as claimed by the plaintiff. The court was also required to assess the evidence presented by both parties and determine the validity of the loan agreement, the terms of repayment, and whether the defendant had fulfilled his obligations under the agreement.

The court found that the evidence presented by the plaintiff was credible and that the defendant had not repaid the full amount due under the terms of the loan agreement. The court held that the defendant had acknowledged the existence of the debt and had agreed to repay the outstanding balance. The court found that the terms of the loan agreement were clear and that the defendant had not fulfilled his obligations under the agreement. The court further held that the defendant's argument that the monies had been repaid in full was without merit. The court ordered the defendant to pay the plaintiff the sum of $45,264.68, representing the outstanding balance due under the terms of the loan agreement.

Orders