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Gray v O'Donnell

Gray v O'Donnell

Case [2009] NSWSC 259 8 April 2009

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CITATION: Gray v O'Donnell [2009] NSWSC 259

HEARING DATE(S): 27 February 2009

JUDGMENT DATE :
8 April 2009

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) That the judgment of the Local Court given at Sutherland on 8 February 2008 in the matter of Robert Peter Gray & Anor v Scott Thomas O’Donnell & Anor be quashed;
(ii) The proceedings be remitted to the Local Court to be determined in accordance with law;
(iii) The defendants, jointly and severally, pay the plaintiffs' costs of these proceedings, as agreed or assessed;
(iv) To the extent otherwise eligible, the defendants be granted an indemnity certificate pursuant to the Suitors' Fund Act 1951;
(v) Liberty to apply be granted to each party on two working days' notice to the Court and other parties for any special or additional order either as to costs or to reflect the reasons for judgment herein.

CATCHWORDS: CONTRACT – loan "payable on demand in writing" – construction of contract from its terms – debt not payable immediately, but only after service of demand – cause of action accrues when demand first occurs – proceedings in time - PRACTICE AND PROCEDURE – time limitation for debt payable on demand runs from date of advance of money – question of construction of contract – "payable on demand in writing" requires service of written demand – time runs from when demand first served – proceedings not time barred

LEGISLATION CITED: Conveyancing Act 1919
Limitation Act 1969
Suitors' Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57; (2008) 83 ALJR 196
Benson-Brown v Smith [1999] VSC 208
Currabubula Holdings and Paola Holdings v State Bank of NSW [1999] NSWSC 276
D&J Fowler (Aust) Ltd v Bank of New South Wales [1982] 2 NSWLR 879
Foley v Hill [1848] 9 ER 1002
Haller v Ayre & Anor [2005] QCA 224; (2005) 2 Qd R 410
Murphy v Lawrence [1960] NZLR 772
Ogilvie v Adams [1981] VR 1041
Re Brown's Estate [1893] 2 Ch 300
Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560

PARTIES: Robert Peter Gray (First Plaintiff)
Narelle Jean Gray (Second Plaintiff)
Scott Thomas O'Donnell (First Defendant)
Bronwyn Jean O'Donnell (Second Defendant)

FILE NUMBER(S): SC 10984/2008

COUNSEL: P Blackburn-Hart SC / P Bruckner (Plaintiffs)
J Hassett (Solicitor) (First Defendant)
D Crawford (Solicitor) (Second Defendant)

SOLICITORS: Kelvin Solari Solicitors (Plaintiffs)
Hassett Dixon Solicitors & Attorneys (First Defendant)
Moira Ryan Lawyers (Second Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 181/2007

LOWER COURT JUDICIAL OFFICER : Farnan LCM

LOWER COURT DATE OF DECISION: 8 February 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

8 APRIL 2009

10984/2008 Robert Peter Gray & Anor v Scott Thomas O’Donnell & Anor
JUDGMENT

1 HIS HONOUR: Robert and Narelle Gray appeal a judgment of the Local Court determining that they were time-barred to proceed to recover money lent to their daughter…

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 Gray v O'Donnell

Details

AGLC: Gray v O'Donnell [2009] NSWSC 259
Case: [2009] NSWSC 259
Decision Date: 8 April 2009

CaseChat Overview and Summary

The matter of Gray v O'Donnell was heard by the Supreme Court of Victoria. The dispute centred on a loan agreement which stipulated that repayment would be "payable on demand in writing." The respondent, O'Donnell, claimed that the appellant, Gray, had not repaid the loan within the statutory limitation period, arguing that the debt became immediately payable upon the execution of the loan agreement. Gray, however, contended that the debt was not payable until a written demand for repayment had been served.

The central legal issue was the interpretation of the phrase "payable on demand in writing" in the loan agreement. Specifically, the court had to determine whether the phrase implied an immediate obligation to repay the loan upon its creation or if it necessitated a formal, written demand for repayment before the debt became payable. Additionally, the court needed to decide when the limitation period for enforcing the debt began to run.

The court held that the phrase "payable on demand in writing" required a formal, written demand before the debt became payable. This interpretation meant that the limitation period did not begin to run until the date when the written demand was first served. Consequently, the court found that the respondent's proceedings were not time-barred because they were initiated within the statutory period after the first demand was served. The court emphasised that the construction of the contract was pivotal in determining the accrual of the cause of action and the commencement of the limitation period.

The final orders of the court were that the respondent's action was not time-barred and could proceed to determine the merits of the claim. The court directed that the matter be remitted to the lower court for further proceedings in accordance with the findings on the construction of the loan agreement and the applicable limitation period.

Orders