Kennedy v Locker

[2018] NSWDC 56

District Court

New South Wales

Medium Neutral Citation:

Kennedy v Locker [2018] NSWDC 56

Hearing dates:

15 March 2018

Date of orders:

21 March 2018

Decision date:

21 March 2018

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant in an amount to be agreed or assessed.
(2)   Direct the parties to confer and attempt to agree upon the amount due by the defendant to the plaintiff, in accordance with the reasons set out in the judgment.
(3)   Order the defendant to pay the plaintiff’s costs.
(4)   List the matter for further mention or hearing on a date convenient to counsel.

Catchwords:

CONTRACTS – oral agreements – written acknowledgements

 

CONTRACTS – capacity and intention – drunkenness – drunken condition must be known to other party when contract made

LIMITATION OF ACTIONS – confirmation of cause of action – payment – s 54 Limitation Act 1969

Legislation Cited:

Limitation Act 1969

Cases Cited:

Ogilvie v Adams [1981] VR 1041 at 1043
Chidiac v Maatouk & Anor [2010] NSWSC 386
Gibbons v Wright (1954) 91 CLR 423

Texts Cited:

Radan, Gooley and Vickovic, “Principles of Australian Contract Law”, 4th Edition, LexisNexis, 2018

Category:

Principal judgment

Parties:

Esther Anne Kennedy (plaintiff)
Neville Harold Locker (defendant)

Representation:

Counsel:
SA Wells (plaintiff)
M Fraser (defendant)

  Solicitors:
Hedges Bhatty (plaintiff)
Alpine Law (defendant)

File Number(s):

2017/134064

Judgment

Introduction

1. In 2005 and 2006 the plaintiff lent a total of $300,000 to the defendant. At the time the parties were in a domestic relationship.

2. There is a dispute between the parties concerning:

1. the terms upon which the sums were advanced;

2. the interest rate applicable to the loans;

3. whether the claim is statute barred.

3. The plaintiff sues by a Statement of Claim filed on 4 May 2017 which alleges an agreement to lend the funds, created on or about 16 December 2005. The agreement is said to be partly in writing and partly oral.

4. The defendant by a Defence filed on 28 June 2017 denies the agreement alleged by the plaintiff and asserts that there was an agreement in different terms relating to the loan.

Evidence of the Plaintiff

5. The plaintiff gave evidence-in-chief by an affidavit dated 14 August 2017 and was cross-examined. The plaintiff and the defendant were in a domestic relationship between about May 2006 and May 2016. The plaintiff moved into the defendant’s property “Happy Valley” in the Snowy Mountains. The plaintiff said that she was employed by the defendant as a housekeeper/cleaner at the property, upon which there were cabins let out to tourists. The plaintiff gave no evidence as to the creation of an employer/employee relationship.

6. The plaintiff’s evidence was that on 15 December 2005 the defendant told her that he needed to borrow some money. He said he needed $50,000. The defendant said that he promised to pay it back straight away with compound interest at 10%. The defendant said that he would put up his antique goods as security. The plaintiff paid $50,000 to the defendant…