Haller v Ayre

Case [2005] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

Haller v Ayre & Anor [2005] QCA 224

PARTIES:

FALKO HALLER
(plaintiff/appellant)
v
WILLIAM HENRY HINDMAN AYRE
(first defendant/first respondent)
FAREDA AYRE
(second defendant/second respondent)

FILE NO/S:

Appeal No 10682 of 2004
SC No 4753 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2005

JUDGES:

de Jersey CJ, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal dismissed
2.    Appellant to pay respondents' costs of the proceedings

CATCHWORDS:

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - WHEN TIME BEGINS TO RUN - PARTICULAR CAUSES OF ACTION - ACTION ON CONTRACT - where respondents were advanced money under two agreements entered into with the appellant in 1989 and 1990 - where under the first agreement both respondents agreed to "promise to pay in full … upon demand but not later than five years from the date of this Note" - where under the second agreement the first respondent agreed to "promise to pay in full upon demand" - where no action was commenced for repayment until 2003 - where summary judgment given at first instance on the basis that the appellant's cause of action was out of time - whether limitation period began to run when loans were made or only once a demand for payment had been received

LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - CONFIRMATION - ACKNOWLEDGMENTS AND PROMISES TO PAY - where respondents entered into two loan agreements with the appellant in 1989 and 1990 - where no action was commenced for repayment until 2003 - where summary judgment given at first instance on the basis that the appellant's cause of action was out of time - where conversation had taken place between the appellant and the first respondent in 1998 - where appellant had said "If I don't get the money from you, I will not hesitate to go to Court" - where first respondent had replied "We will repay the money we owe you, we just need more time" - where appellant had agreed to give first respondent more time to pay and to reduce the applicable interest rate - whether first respondent had merely promised to pay an existing debt or had agreed to the creation of new obligations - whether consideration was given for any new agreement - whether any new agreement revived a cause of action that was otherwise out of time

GUARANTEE AND INDEMNITY - THE CONTRACT OF GUARANTEE - WHAT CONSTITUTES A GUARANTEE - GENERALLY - where written agreement evidenced a loan by the appellant to the first respondent - where evidence given in an affidavit sworn by the appellant's solicitor on information from the appellant was that the written agreement was only one part of an oral contract of guarantee - where oral contract of…

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Details
AGLC
Haller v Ayre [2005] QCA 224
Case
[2005] QCA 224
Decision Date

CaseChat Overview and Summary

In the matter of Haller v Ayre, the dispute involved the enforcement of two loan agreements between the appellant, Haller, and the respondents, Ayre. The loans were made in 1989 and 1990, with repayment terms that Haller argued were not met by the respondents. The crux of the dispute was the limitation period within which Haller could seek repayment. Haller's action for repayment was initiated in 2003, which the respondents argued was beyond the permissible limitation period. The case was heard in the Supreme Court of Queensland, where the respondents successfully argued for summary judgment on the basis that Haller's action was out of time.

The central legal issues revolved around when the limitation period began to run for Haller's action on the contract and whether any acknowledgments or promises to pay by the respondents could postpone the bar of the limitation period. Additionally, the court needed to determine if there was a new agreement between the parties that could revive an otherwise time-barred cause of action. Another issue was whether the written agreement between the parties constituted a full guarantee or if an oral guarantee was also present, which had not been pleaded at first instance.

The court found that the limitation period began to run when the loans were made in 1989 and 1990, and not upon any demand for payment. The conversation in 1998, where the first respondent promised to repay the money owed, did not constitute a new agreement or consideration that would revive a cause of action. The court held that there was no new agreement, and the promise to repay was merely an acknowledgment of an existing debt. The oral guarantee, which was not pleaded at first instance, did not alter the outcome as it did not constitute a full guarantee. The appeal was dismissed, and Haller was ordered to pay the respondents' costs of the proceedings.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay respondents' costs of the proceedings

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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