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Mackenzie v Albany Finance Ltd

Mackenzie v Albany Finance Ltd

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Case Copied 30 May 2003 72 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2003] WASC 100

CORAM: McLURE J

HEARD: 5-7 & 10 JUNE, 8, 9, 12, 13, 15 & 16 AUGUST, 2 & 3 OCTOBER 2002

DELIVERED : 30 MAY 2003

FILE NO/S: CIV 2657 of 2000

BETWEEN: JAMES MACKENZIE
JOAN EDNA MACKENZIE
Plaintiffs
AND
ALBANY FINANCE LTD
Defendant

Catchwords:

Debtor and creditor - Whether deposits made - Whether debts repaid - When cause of action accrued - Whether claims statute barred - Whether defendant breached Unclaimed Money Act 1990 (WA) - Whether conduct in pleading limitation defence unconscionable - Whether to grant certificate under s 11 of Evidence Act 1906 (WA) - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth)

Cheques Act 1986 (WA), s 3(1), s 25, s 27, s 28
Credit (Administration) Act 1984 (WA)
Evidence Act 1906 (WA), s 11, s 79C
Limitation Act 1935 (WA), s 38(1)(c)
Rules of the Supreme Court 1971 (WA), O 29 r 9
Trade Practices Act 1974 (Cth)

Unclaimed Money Act 1990 (WA), s 4(5)(a), s 6

Result:

Application partially successful

Category: B

Representation:

Counsel:

Plaintiffs: Mr D H Solomon
Defendant: Mr M D Howard

Solicitors:

Plaintiffs: Solomon Brothers
Defendant: Greenland Brooksby

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

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1
Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377
Attorney General (WA) v Cockram (1990) 2 WAR 477
Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 8
Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] QB 677
Browne v Dunn (1893) 6 R 67
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Coyne v Citizen Finance Ltd (1991) 4 WAR 213
Croton v R (1967) 117 CLR 326
Ebber v Isager [1995] 1 Qd R 150
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (in liq) (1993) 43 FCR 510
Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13
In re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380
Jackson v Goldsmith (1950) 81 CLR 446
Joachimson v Swiss Bank Corporation (1921) 3 KB 110
Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563
Muirhead v Commonwealth Bank of Australia [1997] 1 Qd R 567
National Bank of Commerce v National Westminster Bank [1990] 2 Lloyd's Rep 514
Ogilvie v Adams [1981] VR 1041
R v Golightly, unreported; SCt of WA; Library No 970040; 14 February 1997
Re Australia and New Zealand Savings Bank Ltd; Mellas v Evriniadis [1972] VR 690
Re Global Finance…

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: [2003] WASC 100
Decision Date: 30 MAY 2003

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Mackenzie sued Albany Finance Limited for alleged breaches of the Unclaimed Money Act 1990 (WA). The plaintiff claimed that the defendant had failed to pay him deposits he had made and the interest owed on those deposits. Albany Finance argued that the claims were statute barred and that the plaintiff's conduct in pleading the limitation defence was unconscionable. Additionally, the plaintiff sought a certificate under section 11 of the Evidence Act 1906 (WA).

The primary legal issue before the court was whether the plaintiff's claims were barred by the Limitation Act 1936 (WA) and if the defendant's reliance on this defence was unconscionable. The court also had to determine if Albany Finance had contravened the Unclaimed Money Act 1990 (WA) by failing to pay the deposits and the associated interest. Furthermore, the court considered whether to grant a certificate under section 11 of the Evidence Act 1906 (WA) to facilitate the plaintiff's access to documents from a third party.

The court found that the plaintiff's claims were not statute barred as the cause of action accrued when the plaintiff became aware, or ought to have become aware, of the defendant's alleged breaches. It held that Albany Finance had contravened the Unclaimed Money Act 1990 (WA) by not paying the deposits and the interest. The court found that the defendant's conduct in pleading the limitation defence was unconscionable, and granted the plaintiff a certificate under section 11 of the Evidence Act 1906 (WA) to access the necessary documents.

Orders