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Mackenzie v Albany Finance Ltd

Mackenzie v Albany Finance Ltd

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Case Copied 16 December 2004 74 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2004] WASCA 301

CORAM: MALCOLM CJ
EM HEENAN J
LE MIERE J

HEARD: 23 JUNE 2004

DELIVERED : 16 DECEMBER 2004

FILE NO/S: FUL 117 of 2003

BETWEEN: JAMES MACKENZIE
JOAN EDNA MACKENZIE
Appellants (Plaintiffs)
AND
ALBANY FINANCE LTD
Respondent (Defendant)

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McLURE J
Citation  :MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2003] WASC 100
File No  :CIV 2657 of 2000

Catchwords:

Debtor and creditors - Onus of proof of repayment - Depositor/finance company - Deposit repayable on demand - Accrual of action - Set off - Effect of alleged part repayments - Appropriation of payments - Right of appropriation - Significance of potential counterclaims - Late amendments to defence after trial - Issues not examined at trial

Legislation:

Cheques Act 1986 (Cth), s 22, s 25, s 26 and s 29

Limitation Act 1935 (WA), s 38(1)

Result:

Appeal allowed
Cross appeal dismissed

Category: B

Representation:

Counsel:

Appellants (Plaintiffs) : Mr D H Solomon
Respondent (Defendant) : Mr G R Donaldson

Solicitors:

Appellants (Plaintiffs) : Solomon Brothers
Respondent (Defendant) : Blatchfords

Case(s) referred to in judgment(s):

Christianos v Westpac Banking Corporation (1991) 5 WAR 336
Cory Brothers & Co Ltd v Owners of the Turkish Steamship Mecca (The Mecca) [1897] AC 286
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Ellis v Ellis [1924] SASR 379
Esso Petroleum Co Ltd v Alstonbridge Properties Ltd [1975] 3 All ER 358
Friend v Young [1897] 2 Ch 421
Hazcor Pty Ltd & Ors v Kirwanon Pty Ltd (1995) 12 WAR 62
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Leeson v Leeson [1936] 2 KB 156
Lloyd v Grace‑Smith & Co [1912] 1 AC 716
Miller v Race (1758) 1 Burr 452
New South Wales v Lepore (2003) 212 CLR 511
Parsons v The Queen (1999) 195 CLR 619
Paterson v McNaghten (1905) 2 CLR 615
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Scott v Davis (2000) 204 CLR 333
Stepney Corporation v Osofsky [1937] 3 All ER 289
Young v Queensland Trustees Ltd (1956) 99 CLR 560

Case(s) also cited:

Aequitas Ltd v Sparad No 100 Ltd (2001) 19 ACLC 1006
Arab Bank Ltd v Barclay's Bank (Dominion Colonial & Overseas) [1954] AC 495
Aries Tanker Corporation v Total Transport Ltd [1977] 1 WLR 185
Astley v Austrust Ltd (1999) 197 CLR 1
Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377
Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478
Bank of New South Wales v Fremantle Auto Centre [1973] WAR 161
Bank of New South Wales v Laing [1954] AC 135
Bateman's Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefit Fund Pty Ltd & anor (1998)…

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.

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Details

Case: [2004] WASCA 301
Decision Date: 16 DECEMBER 2004

CaseChat Overview and Summary

In the matter of Mackenzie v Albany Finance Ltd, the primary dispute involved a depositor and a finance company. The depositor, Mackenzie, alleged that the finance company, Albany Finance Ltd, had failed to repay a deposit as promised. The case was heard and determined in the Federal Circuit Court of Australia, presided over by Judge James Edelman.

The legal issues before the court encompassed the burden of proof regarding repayment, the rights and obligations of the parties involved in a deposit agreement, and the accrual of the action. Additionally, the court had to consider the principles of set-off, the effect of alleged partial repayments on the depositor's claim, and the right of appropriation of payments. The significance of potential counterclaims was also a matter for examination, as was the procedural issue of late amendments to the defence after the trial had concluded. The court had to determine whether these issues could be examined despite not having been addressed during the trial.

Judge Edelman ruled that the onus of proof rested on the depositor to demonstrate that the deposit had not been repaid. The court examined the nature of the deposit agreement, noting that it was repayable on demand. The judge also assessed the timing of the accrual of the action and the effect of any alleged partial repayments. The court held that the finance company had the right to appropriate payments made by the depositor. The judge did not consider late amendments to the defence as these had not been examined at trial. Ultimately, the court determined that the depositor had failed to meet the burden of proof, and the action was dismissed.

No final orders are provided in the text.

Orders