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Gleeson v Gleeson

Gleeson v Gleeson

Case [2002] NSWSC 418 29 May 2002

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CITATION: GLEESON v. GLEESON [2002] NSWSC 418

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 4116/2001

HEARING DATE(S): 08/05/02

JUDGMENT DATE: 29 May 2002

PARTIES :

Valda Josephine Gleeson - Plaintiff
Laurence Bernard Glesson - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : M. Bridger - Plaintiff
D. Ash - Defendant

SOLICITORS: Smyth, Turner & Wall - Plaintiff
Sneddon & Partners - Defendant

CATCHWORDS: LIMITATION OF ACTIONS - Mortgage - mortgagee took mortgage in 1980, principal repayable in 1985, sued in 2001 for possession and judgment for principal (wholly unpaid) and interest. Defence relied on Limitation Act 1969 ss. 27, 42 and 43. Held that s.42 not s.27 fixed time for recovery of possession, but s.40 governed s.42 where claim for possession was based on Real Property Act s.60. There is no time bar for remedies conferred on mortgagee under Real Property Act, including claim for possession under s.60, but s.42 applies to action for principal and s.43 applies to action for interest. Payments on account of interest commencing about 1993 under arrangements between the parties confirmed the principal so it was not time-barred, and repaid the interest partly due from 1993 on, so no current interest was unpaid, while interest before 1993 was barred.

LEGISLATION CITED: Limitation Act 1969
Real Property Act 1900

CASES CITED: Romain v. Scuba TV Limited [1997] QB 887
In Re J Brown's Estate; Brown v. Brown [1893] 2 Ch 300
Young v Queensland Trustees Ltd (1956) 99 CLR 560
Ogilvie v. Adams [1981] VR 1041
DFC New Zealand Ltd v. McKenzie [1993] 2 NZLR 576
Lloyds Bank Ltd v. Margolis [1954] 1 WLR 644

DECISION: Judgment for the plaintiff. See para 54

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

Wednesday 29 May 2002

4116/01 VALDA JOSEPHINE GLEESON v. LAURENCE BERNARD GLEESON

JUDGMENT

1 HIS HONOUR: The plaintiff claims judgment for possession and other remedies relating to “Laguna”, a rural property at Lostock via Gresford, New South Wales. Laguna is the land in five contiguous lots held under five Crown grants and certificates of title and is said to contain about 1000 acres. The land is hilly terrain, with some afforestation, generally suitable for cattle grazing. It has no electricity supply, no permanent water supply, and no dwelling or other accommodation for persons or significant improvements. The only use of the land of which evidence speaks is grazing and agisting cattle. The plaintiff received the land as a gift from her father. When he died in March 1972 she also received a gift under his will of a further lot containing about a half acre suitable for housing. She transferred Laguna to the defendant, who is one of her three sons, by a Memorandum of Transfer dated 10 September 1980 and registered on 28 November 1980. According to its terms the transfer was effected for consideration of $45,500 and that sum had been paid. At the same time she also took a mortgage, which was registered S667697…

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 Gleeson v Gleeson

Details

AGLC: Gleeson v Gleeson [2002] NSWSC 418
Case: [2002] NSWSC 418
Decision Date: 29 May 2002

CaseChat Overview and Summary

The case of Gleeson v Gleeson involves a dispute between the parties concerning the enforceability of a mortgage taken in 1980, where the principal was to be repaid by 1985. The mortgagee sought possession of the property and a judgment for the principal amount and interest in 2001. The defendant raised a defence based on the Limitation Act 1969, specifically sections 27, 42, and 43, to argue that the action was time-barred. The matter was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to resolve were which sections of the Limitation Act applied to the mortgagee’s claims for possession, principal, and interest, and whether any of these claims were barred by limitation. The court had to determine the applicable limitation period for the mortgagee's right to possession, as well as for the recovery of the principal and interest. This involved interpreting the interplay between the Real Property Act and the Limitation Act, and assessing whether any payments made by the defendant after 1993 had any effect on the limitation periods.

The court concluded that section 42 of the Limitation Act governed the time frame for the mortgagee’s claim for possession, while section 40 applied to this scenario as the claim for possession was based on section 60 of the Real Property Act. Importantly, the court held that there is no time bar for the remedies conferred on the mortgagee under the Real Property Act, including the claim for possession. However, section 42 applied to the action for the principal, and section 43 applied to the action for interest. Payments made by the defendant starting in 1993 confirmed the principal amount and effectively repaid interest accruing from 1993 onwards, thereby negating any current interest liability. As a result, interest accruing before 1993 was deemed time-barred, while the principal and interest from 1993 were not.

The court ordered that the mortgagee's claim for possession was not time-barred and could proceed. The claim for the principal was not barred, but the interest before 1993 was. The interest accruing from 1993 was not time-barred, and the court made orders reflecting this determination.

Orders