Royal v El Ali - [2011] NSWSC 602

Supreme Court

New South Wales

Medium Neutral Citation: Royal v El Ali [2011] NSWSC 602
Hearing dates: 11, 12, 13 April 2011
Decision date: 03 June 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
Direct the parties to bring in short minutes to reflect my reasons for judgment and argue any question of costs

Catchwords: CONTRACT - construction - whether contract gives rise to a debt and whether interest is to be paid; Limitation Act 1969 - whether certain debts statute barred - allocation of payments for the purpose of confirmation under s 54; PLEADING - Common Indebitatus Accounts - Account Stated
Legislation Cited: Limitation Act 1969 (NSW)
Cases Cited: Ashby v James (1843) 11 M & W 542; (1843) 152 ER 920;
Young v Queensland Trustees Limited (1956) 99 CLR 560;
Ogilvie v Adams [1981] VR 1041
Category: Principal judgment
Parties: Peter Paul Royal - First Plaintiff
Judith Louise Royal - Second Plaintiff
Nathan El Ali - Defendant
Representation: Counsel:
Mr IE Davidson SC & Ms L Young - Defendant
Solicitors:
Benjamin & Robinson - Plaintiffs
ERA Legal - Defendant

File Number(s): 2010/00052671

Judgment

His Honour : This is the hearing of a claim by Mr Peter Royal and Mrs Judith Royal against Mr Nathan El Ali to recover monies purportedly advanced between 2002 and 2007, together with interest.

Background

Mr Royal had worked in banking for many years and by 1998 he was employed by Suncorp, at Parramatta. At that stage he met the defendant, who was then the assistant operations manager for New South Wales and Victoria.

In 1999, following some rearrangement of positions in the company, Mr Royal became supervisor of the Kogarah sales centre and from that time he reported to Mr El Ali who was the regional manager.

In 2001 Mr El Ali resigned from Suncorp and set up his own mortgage business, EasyChoice. Mr El Ali asked Mr Royal to join EasyChoice but he declined. In 2002, following Suncorp's closure of its sales centres, Mr Royal resigned from Suncorp and accepted an offer of employment with EasyChoice Home Loans Pty Limited.

Apart from one earlier loan, it was during Mr Royal's employment with EasyChoice that Mr and Mrs Royal made various advances to Mr El Ali. The advances, which are not disputed by Mr El Ali, are as follows:

Date

Loan

Amount

February 2002

First loan agreement

$20,000

4 December 2002

Second loan agreement

$100,000

2 July 2003

Third loan agreement

$300,000

13 August 2003

Fourth loan agreement

$9,000

6 November 2003

Fifth loan agreement

$20,000

13 January 2004

First of the five further loans

$10,000

7 December 2004

Second of the five further loans

$26,000

15 December 2004

Third of the five further loans

$3,000

28 October 2005

Fourth of the five further loans

$7,000

8 March 2007

Fifth of the five further loans

$300,000

Total $795,000

There is a dispute between the parties concerning a transfer by Mr El Ali to Mr Royal of a red Mercedes car…

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 Royal v El Ali

Details

AGLC: Royal v El Ali [2011] NSWSC 602
Case: [2011] NSWSC 602
Decision Date: 03 June 2011

CaseChat Overview and Summary

In the case of Royal v El Ali, the respondent, Royal, sought to recover money owed for construction work completed at a property in Mosman. The primary issue before the court was whether a contract between the parties gave rise to a debt and, if so, whether interest should be paid on that debt. Additionally, the court had to determine whether certain debts were statute-barred under the Limitation Act 1969 and how payments should be allocated for the purpose of confirmation under section 54 of that Act. The respondent also raised a claim for an account stated.

The court examined the terms of the contract and concluded that it did indeed give rise to a debt. In relation to the interest claim, the court found that the contract did not explicitly provide for interest payments. Regarding the limitation period, the court determined that the relevant debts were not barred by the statute of limitations. The court also addressed the issue of allocating payments to specific invoices for the purpose of confirmation under section 54 of the Limitation Act 1969, finding that the respondent had adequately identified the debts in question. Finally, the court considered the claim for an account stated and determined that it was not applicable in this case.

The court's decision was that the debt existed and was not statute-barred. The court did not award interest, as the contract did not provide for it. The court also found that the respondent had properly allocated payments and that the claim for an account stated was not applicable. As a result, the court ordered that the respondent recover the debt from the appellant, El Ali, without interest.

Orders