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
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
These proceedings…
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.
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Details
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.