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Mereniuk v Wilks

Mereniuk v Wilks

Case [2024] NSWDC 376 28 August 2024

Limitation Periods

Breach of Contract

Compensatory Damages

Civil Litigation & Procedure

Contract Law

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District Court

New South Wales

Medium Neutral Citation: Mereniuk v Wilks [2024] NSWDC 376
Hearing dates: 29-30 April, 14 June and 27 August 2024
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   Judgment for the plaintiffs.
(2)   The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed total for each of the three sums claimed.
(3)   Interest and Costs reserved, with liberty to apply.
(4)   Exhibits retained until further order.

Catchwords:
LOAN – Defendant and his wife solicit the plaintiffs (her parents) for funds for a series of three family homes – repayments made over a lengthy period – whether a loan or a gift - LIMITATION OF ACTIONS - date of accrual of cause of action based on a debt - existence of confirmation of debt and operation of s 54 of Limitation Act - proceedings commenced within limitation period

Legislation Cited:
Limitation Act 1969 (NSW), ss 14, 54, 63
Uniform Civil Procedure Rules 2005 (NSW), r 14.2

Cases Cited:
AB (personal representative of the late GH) v KL [2019] EWHC 611 (QB)
Agricultural and Rural Finance Pty Ltd v Gardner (2008) 238 CLR 570; [2008] HCA 57
Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38
Ashton v Pratt (No 2) [2012] NSWSC 3
Balfour v Balfour [1919] 2 KB 571
Bank of China Limited v CGS (Group) Pty Ltd [2009] NSWSC 397
Berghan v Berghan [2017] QCA 236
Chalik v Chalik [2024] NSWSC 117
Chant v Curcuruto [2021] NSWSC 751
Chaudhary v Chaudhary [2017] NSWCA 222
Chidiac v Maatouk [2010] NSWSC 386
Commissioner of Taxation (Cth) v Radilo Enterprises Pty Ltd (1997) 72 FCR 300
Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95
Hipworth v Mahar (1952) 87 CLR 335; [1952] ALR 633
In re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] 1 Ch 146
Nadilo v Souris [2019] NSWSC 108
Ogilvie v Adams [1981] VR 1041
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
R v Logue (Court of Criminal Appeal (NSW), 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unrep)
Reeves v Reeves [2024] NSWSC 134
Sion v NSW Trustee and Guardian [2013] NSWCA 337
Svenson v Doherty [2014] NSWDC 106
Tadrous v Tadrous [2010] NSWSC 1388
Tadrous v Tadrous [2012] NSWCA 16
Teen Ranch Pty Ltd v Brown (1995) 87 IR 308
The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; 38 ALR 253
Vadisanis & Vadisanis [2015] FamCA 161
Woodhouse v Woodhouse [2022] NSWCA 240

Texts Cited:
G Dal Pont, Law of Limitations (2nd ed, 2021, LexisNexis) at [17.26]
Productivity Commission, Wealth Transfers and their Economic Effects, (2021)

Category: Principal judgment
Parties: Andrew Orest Mereniuk (Plaintiff)
Robyn Judith Mereniuk (Plaintiff)
Matthew Leonard Wilks (Defendant)
Representation:
Counsel:
Mr R Quickenden (Plaintiffs)
Mr D K Smith (Defendant)
Solicitors:
Peninsula Law Solicitors (Plaintiffs)
Sage Solicitors (Defendant)

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.

Continue reading Mereniuk v Wilks

Details

AGLC: Mereniuk v Wilks [2024] NSWDC 376
Case: [2024] NSWDC 376
Decision Date: 28 August 2024

CaseChat Overview and Summary

The case of Mereniuk v Wilks involved the plaintiffs, Mereniuk and his wife, who loaned money to the defendants, Wilks and his wife, for the purpose of constructing a series of three family homes. Over time, the defendants made payments towards the loan, but the exact nature of the transactions remained unclear. The central dispute was whether the payments were made as repayments of a loan or as gifts. This uncertainty led to a legal challenge by the plaintiffs seeking clarification and repayment of the outstanding balance. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was determining the nature of the financial transactions between the parties and whether the payments made by the defendants constituted loan repayments or gifts. Additionally, the court had to consider the application of the Limitation Act, particularly the date on which the cause of action accrued, and whether the plaintiffs' action was time-barred. The court also needed to examine whether there was any confirmation of the debt that could reset the limitation period under section 54 of the Limitation Act.

The court concluded that the payments made by the defendants to the plaintiffs were indeed repayments of a loan, not gifts. This finding was based on the evidence presented, which demonstrated an intention to repay a debt rather than the gratuitous transfer of funds. Furthermore, the court determined that the cause of action accrued on the date of the last repayment made by the defendants, which fell within the limitation period. The court held that the plaintiffs' action was not barred by the Limitation Act, as there was a confirmation of the debt that extended the limitation period. Consequently, the court ruled in favour of the plaintiffs and ordered judgment in their favour.

The court ordered judgment in favour of the plaintiffs, allowing them to recover the outstanding balance of the loan. The parties were granted liberty to prepare and lodge Short Minutes of Order reflecting the total amount owed for each of the three sums claimed. Interest and costs were reserved pending further application. The exhibits were to be retained until further order. This decision provided clarity on the nature of the financial transactions and ensured that the plaintiffs could seek repayment of the loan within the applicable limitation period.

Orders

Orders of the court

(1) Judgment for the plaintiffs.

(2) The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed total for each of the three sums claimed.

(3) Interest and Costs reserved, with liberty to apply.

(4) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Mereniuk v Wilks [2024] NSWDC 376

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 33 of 33 shown

Reeves v Reeves
[2024] NSWSC 134 Para 88

…In Reeves v Reeves [2024] NSWSC 134, albeit in the context of estoppel and will construction, Meek J set out how financial transactions in “the context of family circumstances” (at [466]) should be approached, adding at [468]:…
Chalik v Chalik
[2024] NSWSC 117 Para 21

…yed by contemporaneous documentation in determining the intentions of the parties: Chidiac v Maatouk at [104]-[106] (but note [211]); Chalik v Chalik [2024] NSWSC 117 at [43]. The keeping of a register or other record of sums advanced may be considered significant: Berghan v Berghan [2017] QCA 236 at [25].…
Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788
[2022] HCA 38 Para 111

…municated to the other party, not to insist upon a right or not to exercise a power: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38 at [28]. There was no express or implied intention of the plaintiffs to abandon a right of seeking the outstanding offset loan claim.…
Woodhouse v Woodhouse
[2022] NSWCA 240 Para 97

…I have been guided by the observations of Meagher JA in Woodhouse v Woodhouse [2022] NSWCA 240. In particular, the question of whether each of these loans were repayable on demand needs to be seen in the context that, before the limitation period had expired, there had been a life-changing event for all parties, na…
Chant v Curcuruto
[2021] NSWSC 751 Para 24

…ere possible, I have looked for some corroboration: ( Chalik v Chalik , citing Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 and Chant v Curcuruto [2021] NSWSC 751 at [263]–[264]).…
Nadilo v Souris
[2019] NSWSC 108 Para 20

…in Ward J's judgment in Chidiac v Maatouk [2010] NSWSC 386. Mr Smith adds that I must take into account the warning of Leeming JA in Nadilo v Souris [2019] NSWSC 108 at [79] that the court will “not readily in family arrangements, particularly in informal family arrangements” find that the requisite intention to e…
Berghan v Berghan
[2017] QCA 236 Para 21

…Chalik v Chalik [2024] NSWSC 117 at [43]. The keeping of a register or other record of sums advanced may be considered significant: Berghan v Berghan [2017] QCA 236 at [25].…
Chaudhary v Chaudhary
[2017] NSWCA 222 Para 1

…In Chaudhary v Chaudhary [2017] NSWCA 222 (“Chaudhary”) at [7], Sackville AJA noted the difficulties of interpretation of informal intra-familial advancement of funds, particularly where these were to be used for the purchase of a home for younger members of the family who could not otherwise afford to do so:…
Ashton v Pratt (No 2)
[2015] NSWCA 134

…livan [2006] NSWCA 312 ( Sullivan ) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA; see also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 ( Ashton v Pratt (CA )) at [224] per Meagher JA, citing Ermogenous at [24]-[26] and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR…
VADISANIS & VADISANIS
[2015] FamCA 161 Para 91

…The essence of a loan is the promise of repayment. Mere promise to repay may be sufficient: Vadisanis & Vadisanis [2015] FamCA 161 at [123], [128]. Where there is actual repayment, as has occurred in each of these three transactions (and I note the existence of a loan now appears to have been admitted in relation t…
Ashton v Pratt
[2015] NSWCA 12

…2 ( Sullivan ) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA; see also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 ( Ashton v Pratt (CA )) at [224] per Meagher JA, citing Ermogenous at [24]-[26] and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA…
Svenson v Doherty
[2014] NSWDC 106 Para 121

…This question arose in Svenson v Doherty [2014] NSWDC 106. Cogswell SC DCJ (at [27]) considered the adequacy of financial records to establish acknowledgement, referring to the argument in The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; 38 ALR 253 (“ Stage Club ”) that a corporation's indebtedness t…
Sion v NSW Trustee & Guardian
[2013] NSWCA 337 Para 5

…is of the facts will result in a conclusion that the parties did not intend to enter into legally binding relations ( Sion v NSW Trustee and Guardian [2013] NSWCA 337 at [39]). The result is that a close and objective analysis of the facts is essential and factors such as evidence of repayment, admissions as to the…
Tadrous v Tadrous
[2012] NSWCA 16 Para 2

…menced keeping in 2006, before the first loans were made. The importance of the keeping of such financial records has been noted in Tadrous v Tadrous [2012] NSWCA 16 (see also Berghan v Berghan) . While the accuracy of this document is challenged, there is no contradictory documentary evidence, such as bank accoun…
Ashton v Pratt (No 2)
[2012] NSWSC 3 Para 4

…ve rise to binding contracts, because the parties lacked the necessary intention, although the presumption was rebuttable ( Ashton v Pratt (No 2) [2012] NSWSC 3 at [29] – [36] per Brereton J, referring to Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 at 310 and Balfour v Balfour [1919] 2 KB 571).…
Evans v Evans
[2011] NSWCA 92 Para 124

…v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA; Sullivan v Sullivan [2006] NSWCA 312 ( Sullivan ) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA; see also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 ( Ashton v Pratt (CA )) at [224] per Meagher JA, citing Ermogenous a…
Tadrous v Tadrous
[2010] NSWSC 1388 Para 23

…treat the uncorroborated evidence of distant conversations with a natural caution, especially in the context of family disputation: Tadrous v Tadrous [2010] NSWSC 1388 at [12]; Chidiac v Maatouk at [102].…
Chidiac v Maatouk
[2010] NSWSC 386 Para 20

…mstances in cases such as these, and I have been guided by the helpful summary of the authorities contained in Ward J's judgment in Chidiac v Maatouk [2010] NSWSC 386. Mr Smith adds that I must take into account the warning of Leeming JA in Nadilo v Souris [2019] NSWSC 108 at [79] that the court will “not readily i…
Bank of China Ltd v C.G.S (Group) Pty Ltd
[2009] NSWSC 397 Para 118

…e plaintiffs the benefit of several different contractual promises to pay the same debt: see Bryson AJ in Bank of China Limited v CGS (Group) Pty Ltd [2009] NSWSC 397 at [34].…
Agricultural and Rural Finance Pty Ltd v Gardiner
[2008] HCA 57 Para 113

…forgiveness of this kind known to the law: see Gummow, Hayne and Kiefel JJ, Agricultural and Rural Finance Pty Ltd v Gardner (2008) 238 CLR 570; [2008] HCA 57 at [95]-[96].…
Sullivan v Sullivan
[2006] NSWCA 312 Para 85

…84]-[86] per Lord Neuberger of Abbotsbury; in this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA; Sullivan v Sullivan [2006] NSWCA 312 ( Sullivan ) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA; see also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA…
Pacific Carriers Ltd v BNP Paribas
[2004] HCA 35

…81; [2015] NSWCA 12 ( Ashton v Pratt (CA )) at [224] per Meagher JA, citing Ermogenous at [24]-[26] and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22].”…
Galaxidis v Galaxidis
[2004] NSWCA 111 Para 93

…or at [24]-[27] per Lord Rodger of Earlsferry and at [80], [84]-[86] per Lord Neuberger of Abbotsbury; in this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA; Sullivan v Sullivan [2006] NSWCA 312 ( Sullivan ) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA…
Ermogenous v Greek Orthodox Community of SA Inc
[2002] HCA 8 Para 88

…here are no longer presumptions involving family relationships where funds are advanced: Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95).…
MIEA v Guo
[1997] FCA 22 Para 90

…What is a “loan”? In Commissioner of Taxation (Cth) v Radilo Enterprises Pty Ltd (1997) 72 FCR 300 at 313, the Full Federal Court (Lee, Sackville and Lehane JJ) considered an appeal that centred on the question as to whether the payment of a dividend to the respondent by a third party company was equivalent to the p…
Teen Ranch Pty Ltd v Brown
[1994] NSWCA 307 Para 4

…necessary intention, although the presumption was rebuttable ( Ashton v Pratt (No 2) [2012] NSWSC 3 at [29] – [36] per Brereton J, referring to Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 at 310 and Balfour v Balfour [1919] 2 KB 571).…
Stage Club Ltd v Millers Hotels Pty Ltd
[1981] HCA 71 Para 121

…) considered the adequacy of financial records to establish acknowledgement, referring to the argument in The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; 38 ALR 253 (“ Stage Club ”) that a corporation's indebtedness to a creditor was acknowledged by the corporation's balance sheet given to an officer…
Plunkett v Bull
[1915] HCA 14 Para 24

…I have treated them with caution; where possible, I have looked for some corroboration: ( Chalik v Chalik , citing Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 and Chant v Curcuruto [2021] NSWSC 751 at [263]–[264]).…
Hipworth v Mahar
[1952] HCA 43 Para 121

…ilson J (with whom Murphy J agreed) in Stage Club . Financial documents as an acknowledgement were also considered sufficient in Hipworth v Mahar (1952) 87 CLR 335; [1952] ALR 633.…
Agricultural and Rural Finance Pty Limited v Gardiner
[2008] HCA 5711 Para 113

…ere is no defence of forgiveness of this kind known to the law: see Gummow, Hayne and Kiefel JJ, Agricultural and Rural Finance Pty Ltd v Gardner (2008) 238 CLR 570; [2008] HCA 57 at [95]-[96].…
[1919] 2 KB 571
[1919] 2 KB 571 Para 4

…ratt (No 2) [2012] NSWSC 3 at [29] – [36] per Brereton J, referring to Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 at 310 and Balfour v Balfour [1919] 2 KB 571).…
Pty Ltd v Sprowles
636 F Supp 1419

…at the balance of that witness’ testimony can never be accepted without corroboration (Heydon JA, as his Honour then was, in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, at 719). [190] For the reasons set out above, I do not accept George’s denial of the fact that there was a loan and hence I do not accept his…
Malco Engineering Pty Limited v Ferreira & ors
17 ER 495

…is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (per Handley JA in Malco Engineering Pty Limited v Ferreira & ors (1994) 10 NSWCCR 117, there a case where a finding of perjury had been made on one part of the evidence), though this does not mean that the balance of that wit…

Legislation cited in this decision · 2

Limitation Act 1969 (NSW)
14, 54, 63 4 mentions (from Para 10)
Uniform Civil Procedure Rules 2005 (NSW)
14.2 1 mention

Medium Neutral Citation:	Mereniuk v Wilks [2024] NSWDC 376
Hearing dates:	29-30 April, 14 June and 27 August 2024
Date of orders:	28 August 2024
Decision date:	28 August 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiffs. (2) The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed total for each of the three sums claimed. (3) Interest and Costs reserved, with liberty to apply. (4) Exhibits retained until further order.
Catchwords:	LOAN – Defendant and his wife solicit the plaintiffs (her parents) for funds for a series of three family homes – repayments made over a lengthy period – whether a loan or a gift - LIMITATION OF ACTIONS - date of accrual of cause of action based on a debt - existence of confirmation of debt and operation of s 54 of Limitation Act - proceedings commenced within limitation period
Legislation Cited:	Limitation Act 1969 (NSW), ss 14, 54, 63 Uniform Civil Procedure Rules 2005 (NSW), r 14.2
Cases Cited:	AB (personal representative of the late GH) v KL [2019] EWHC 611 (QB) Agricultural and Rural Finance Pty Ltd v Gardner (2008) 238 CLR 570; [2008] HCA 57 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38 Ashton v Pratt (No 2) [2012] NSWSC 3 Balfour v Balfour [1919] 2 KB 571 Bank of China Limited v CGS (Group) Pty Ltd [2009] NSWSC 397 Berghan v Berghan [2017] QCA 236 Chalik v Chalik [2024] NSWSC 117 Chant v Curcuruto [2021] NSWSC 751 Chaudhary v Chaudhary [2017] NSWCA 222 Chidiac v Maatouk [2010] NSWSC 386 Commissioner of Taxation (Cth) v Radilo Enterprises Pty Ltd (1997) 72 FCR 300 Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95 Hipworth v Mahar (1952) 87 CLR 335; [1952] ALR 633 In re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] 1 Ch 146 Nadilo v Souris [2019] NSWSC 108 Ogilvie v Adams [1981] VR 1041 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 R v Logue (Court of Criminal Appeal (NSW), 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unrep) Reeves v Reeves [2024] NSWSC 134 Sion v NSW Trustee and Guardian [2013] NSWCA 337 Svenson v Doherty [2014] NSWDC 106 Tadrous v Tadrous [2010] NSWSC 1388 Tadrous v Tadrous [2012] NSWCA 16 Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; 38 ALR 253 Vadisanis & Vadisanis [2015] FamCA 161 Woodhouse v Woodhouse [2022] NSWCA 240
Texts Cited:	G Dal Pont, Law of Limitations (2nd ed, 2021, LexisNexis) at [17.26] Productivity Commission, Wealth Transfers and their Economic Effects, (2021)
Category:	Principal judgment
Parties:	Andrew Orest Mereniuk (Plaintiff) Robyn Judith Mereniuk (Plaintiff) Matthew Leonard Wilks (Defendant)
Representation:	Counsel: Mr R Quickenden (Plaintiffs) Mr D K Smith (Defendant) Solicitors: Peninsula Law Solicitors (Plaintiffs) Sage Solicitors (Defendant)