Conridge v Schaapveld

Case [2015] NSWSC 663



Supreme Court

New South Wales

Case Name: 

Peter John Conridge v Marius Emiele Schaapveld

Medium Neutral Citation: 

[2015] NSWSC 663

Hearing Date(s): 

22, 23 and 24 April 2015

Date of Orders:

29 May 2015

Decision Date: 

29 May 2015

Jurisdiction: 

Equity Division

Before: 

Rein J

Decision: 

See [65]

Catchwords: 

EQUITY- Wholly oral loan agreements - Loans claimed to be made to all four defendants - Dismissal of proceedings by consent against two alleged co-obligees - Whether there remains an action against the remaining two alleged co-obligees - Whether even if not barred plaintiff has established that any of the defendants were borrowers as opposed to one or other of two corporations - Whether plaintiff’s claim is statute barred - Whether the plaintiff was under “a disability” within the meaning of s 52(1)(c) of the Limitation Act 1969 (NSW) due to incarceration - Whether the alleged debtors made payments which, by virtue of s 54(2)(a)(ii), recommenced the limitation period

Legislation Cited: 

Law Reform (Miscellaneous Provisions) Act 1955 (ACT)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW)

Cases Cited: 

Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635
Browne v Dunn (1893) 6 R 67
Bull v Lee (No 2) [2009] NSWCA 362
Dare v Pulham (1982) 148 CLR 658
Deane v City Bank of Sydney [1918] HCA 42; (1918) 25 CLR 215
Duck v Mayeu [1892] 2 QB 511
El-Mir v Risk [2005] NSWCA 215
Karaagac v GRE Insurance Ltd [1989] NSWCA 116
McDermott v Black [1940] HCA 4; (1940) 63 CLR 161
Mills v Fowkes (1839) 5 Bing NC 455; 132 ER 1174
Morris v State of New South Wales [2005] NSWDC 10
Murray-Oates v Jjadd Pty Ltd [1999] SASC 537;
Re Estate of Levi & Co; Ex parte Levi (1874) 8 SALR 144 (FC)
Re EWA (a debtor) [1901] 2 KB 642
Re Footman Bower & Co Ltd [1961] Ch 443; [1961] 2 WLR 667; [1961] 2 All ER 161
Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159; (2011) 42 WAR 59
Simson v Ingham (1823) 2 B & C 65, 107 ER 307
SW v New South Wales [2010] NSWSC 966
Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574
Walker v Bowry [1924] HCA 28; (1924) 35 CLR 48
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited: 

Glanville Williams, Joint Obligations (1949, Butterworth & Co)
P. Handford, Limitation of Actions (2007, 2nd ed, Thomson Lawbook Co)

Category: 

Principal judgment

Parties: 

Peter John Conridge (Plaintiff)
Marius Emiele Schaapveld (First Defendant)
Marius Anthony Charles Schaapveld (Second Defendant)
Justin Emiele Schaapveld (Third Defendant)
Annette Mary Schaapveld (Fourth Defendant)

Representation: 

Counsel:
M.A Robinson SC/L.E Edwards (Plaintiff)
D McGovern SC/ P Newton (First and Fourth Defendants)
C.D Wood (Second and Third Defendants)

Solicitors:
Stacks Goudkamp (Plaintiff)
Grech & Bannerman Lawyers (First and Fourth Defendants)
Thomson Geer Solicitors (Second and Third Defendants)

File Number(s): 

2014/202297

Publication Restriction: 

Nil

JUDGMENT

Background

  1. These proceedings…

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AGLC
Conridge v Schaapveld [2015] NSWSC 663
Case
[2015] NSWSC 663
Decision Date

CaseChat Overview and Summary

In Conridge v Schaapveld, the plaintiff, Conridge, sought to enforce alleged wholly oral loan agreements against four defendants, all of whom were directors of companies. The plaintiff claimed that the loans were made to the defendants individually, not to their respective companies. The proceedings against two of the defendants were dismissed by consent, leaving two defendants to contest the claims. The primary issues before the court were whether there remained an action against the remaining defendants and whether the plaintiff had proven that any of the defendants were borrowers rather than their companies. Additionally, the court had to determine if the plaintiff's claim was barred by limitation and whether the plaintiff was under a disability within the meaning of section 52(1)(c) of the Limitation Act 1969 (NSW) due to incarceration, which could affect the limitation period. The court also considered whether any payments made by the alleged debtors could have recommenced the limitation period under section 54(2)(a)(ii).

The court held that the plaintiff had failed to establish that any of the defendants were borrowers, as opposed to their companies. The plaintiff's claim was considered statute-barred, as there was no evidence that the defendants were under a disability due to the plaintiff's incarceration. Furthermore, the court found that the alleged payments made by the defendants did not recommence the limitation period, as they did not amount to an acknowledgement of the plaintiff's claim. The court concluded that the plaintiff's claim was time-barred and dismissed the proceedings against the remaining defendants.

Consequently, the court dismissed the plaintiff's claims against the two remaining defendants, holding that the plaintiff had not discharged the onus of proving that any of the defendants were borrowers rather than their companies. The court found that the plaintiff's claim was statute-barred and that the alleged payments did not recommence the limitation period. The plaintiff's claims were dismissed with costs.

Orders

Orders of the court

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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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