Dobrinski v Slade

[2010] NSWDC 297

CITATION:	Dobrinski v Slade [2010] NSWDC 297
HEARING DATE(S):	1, 2, 3 and 7 December 2010
JUDGMENT DATE:	23 December 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the plaintiff for $514,941.60. (2) Defendant pay plaintiff’s costs. (3) Note that the pre-judgment interest is agreed between the parties at $342,838.87. (4) Exhibits retained for 28 days.
CATCHWORDS:	CONTRACT - loans made in a family situation - whether the defendant is the borrower - impact of promises to repay outstanding loans on sums borrowed outside the limitation period - whether a defence of "forgiveness" of the loans is available
LEGISLATION CITED:	Limitation Act 1969, s 14
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Agricultural and Rural Finance Pty Ltd v Gardner [2008] HCA 57 Allen v Tobias (1958) 98 CLR 367 Bank of China Limited v CGS (Group) Pty Ltd [2009] NSWSC 379 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2010] NSWSC 1073 Delany v Tenison (1758) 3 Bro PC 659 ; 1 ER 1559 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Giorginis v Kastrati (1989) Aust Torts Reports 80-233 Graves v Legg (1854) 9 Exch 709 ; 156 ER 304 Gray v Haig (1854–1855) 20 Beav 219 ; 52 ER 587 NWR FM t/as North West Radio v Broadcasting Commission of Ireland [2004] IEHC 109 R v Logue (NSW Court of Criminal Appeal, 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unreported) Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43 Shepparton Projects Pty Ltd v Cave Investments Pty Ltd [2010] VSC 504 Société D'Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 The Nominal Defendant v Kostic [2007] NSWCA 14 The Ophelia [1916] 2 AC 206
PARTIES:	Plaintiff: Irene Dobrinski Defendant: Roslyn Slade
FILE NUMBER(S):	3901 of 2009
COUNSEL:	Plaintiff: Mr R Seton SC/Ms H Durham Defendant: Ms M Anastasi
SOLICITORS:	Plaintiff: The Norton Law Group/ Lapaine Pomare Forster Defendant: Livingstone & Company

Judgment

[1] The plaintiff, by Second Amended Statement of Claim (filed 31 August 2009), claims $514,941.60 plus interest from the defendant, her daughter. The plaintiff claims she made the defendant a series of loans, some of which were repaid, leaving the sum claimed as the balance outstanding. The moneys which the plaintiff seeks to recover were advanced to the defendant or, at the direction of the defendant, to a third party, in a series of 36 transactions occurring between May 2002 and December 2006.

[2] The plaintiff’s claim is in contract. She claims that the defendant asked her for a series of loans for specified sums and purposes, some of which were interrelated (such as loans pending sale of real estate). The defendant either agreed to repay…