He v Kure

[2023] NSWCA 179

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

He v Kure [2023] NSWCA 179

Hearing dates:

03 May 2023

Date of orders:

04 August 2023

Decision date:

04 August 2023

Before:

Meagher JA at [1];
Kirk JA at [94];
Griffiths AJA at [95]

Decision:

(1) Appeal allowed.

(2) Set aside orders 3, 4, and 5 of the primary judge made on 7 October 2022.

(3) In lieu thereof, order that the respondent’s Further Amended Statement of Claim be dismissed with costs.

(4) Respondent pay the appellant’s costs of the appeal.

Catchwords:

CONTRACTS – Action for recovery of debts due under loan agreements – whether loans repaid in circumstances where debtor authorised to open and operate term deposits in creditor’s name and term deposits in creditor’s name opened by debtor in the amount of debt

LIMITATIONS OF ACTIONS – Debt – whether loans repayable when demanded and on two months’ notice

Legislation Cited:

Corporations Act 2001 (Cth), s 601AH

Limitation Act 1969 (NSW), s 14

Cases Cited:

In the matter of Italasia Pty Ltd [2017] NSWSC 811

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Queensland v Masson [2020] HCA 28; (2020) 318 ALR 560

Category:

Principal judgment

Parties:

Xin Mei He (Appellant)
Hiromichi Kure (Respondent)

Representation:

Counsel:
NJ Kidd SC (Appellant)
M Young SC (Respondent)

Solicitors:
Lawside Lawyers (Appellant)
Dixon Holmes Lawyers (Respondent)

File Number(s):

2022/326111

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2022] NSWSC 1240

Date of Decision:

15 September 2022

Before:

Lindsay J

File Number(s):

2017/83339

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was authorised by the respondent, her longstanding family friend and former neighbour in Shanghai, to open and operate bank accounts in the respondent’s name in Australia. Those arrangements were in place for over three years, during which the respondent also made three advances to the appellant.

The respondent claimed the amount of the three advances as moneys due under three loan agreements. The primary judge upheld these claims and entered a money judgment against the appellant. In doing so, his Honour found that none of the loans had been repaid and that each was repayable “only if and when demanded” and on two months’ notice.

The appellant challenges this judgment in respect of each loan. As to the first advance, she contends that it was not made by way of loan. Even if it were a loan, she contends that it was repaid by her opening two term deposits in the respondent’s name and depositing sums into those accounts in the exact sum advanced. She also argues that, in any case, the limitation period for any action for recovery has expired. As to the second and third advances, while the appellant accepts that each was made pursuant to a loan agreement, she contends that each was repaid and that the recovery of each was also statute-barred.

The two principal issues in the appeal…