Sanders Bros v Marshall - [1995] QCA 475

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 225 of 1994

Brisbane

[Sanders Bros. v. M.R. Marshall Earthmoving Contractor]

BETWEEN

SANDERS BROS

(Plaintiff) Respondent

AND

M.R. (BOB) MARSHALL trading as
M.R. MARSHALL EARTHMOVING CONTRACTOR

(Defendant) Appellant
McPherson J.A.
Williams J.
MacKenzie J.

Judgment delivered 27/10/95

Separate concurring reasons for judgment by each member of the Court.

APPEAL ALLOWED. THE JUDGMENT BELOW IN FAVOUR OF THE DEFENDANT IS VARIED BY INCREASING IT TO $21,742.50. THE JUDGMENT BELOW IN FAVOUR OF THE PLAINTIFF IS VARIED BY REDUCING THE TOTAL AMOUNT OF $30,012.50 BY $6,841.00. THE APPELLANT MUST PAY THE COSTS OF THE RESPONDENT OF AND INCIDENTAL TO THE APPEAL. THE APPELLANT HAS LEAVE TO AMEND THE DEFENCE AND COUNTERCLAIM.

CATCHWORDS	CIVIL - CONTRACT - Money owing on Hire Agreement - Statute of Limitations - Whether written acknowledgment of indebtedness took the claim outside the statute - section 35(3) Limitation of Actions Act - Whether there was a running account between the parties that operated as a defence not subject to a time bar.
Counsel:	K.C. Fleming Q.C., with him P.C.P. Munro, for the appellant
L.F. Kelly for the respondent
Solicitors:	Welsh & Welsh for the appellant
Sykes Pearson & Miller for the respondent
Hearing Date:	18 September 1995
IN THE COURT OF APPEAL	[1995] QCA 475
SUPREME COURT OF QUEENSLAND

Appeal No. 225 of 1994

Brisbane

Before

McPherson J.A.
Williams J.
MacKenzie J.

[Sanders Bros. v. M.R. Marshall Earthmoving Contractor]

BETWEEN

SANDERS BROS

(Plaintiff) Respondent

AND

M.R. (BOB) MARSHALL trading as
M.R. MARSHALL EARTHMOVING CONTRACTOR

(Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 27th day of October 1995

The plaintiffs were a partnership carrying on the business of a quarry operator

and earthmoving contractors. It is convenient to refer to them as Sanders. The

defendant Marshall, who is the appellant in this Court, carried on business as an

earthmoving plant operator and contractor. He and Tom Sanders, who was one of the

plaintiffs, were friends or acquaintances of long standing, who had had many business

dealings over the years. In 1985 Marshall agreed to hire from Sanders a crusher plant

for use at Marshall's quarry at Parklands. It may perhaps be inferred that at the time

Sanders was in some financial difficulty, and Marshall's hiring of the plant was designed

to help him out.

There were some later variations in the terms of the original hire contract, which

lasted until about 1986; but, according to Marshall's evidence at the trial, the parties

agreed that he would pay a rate of $100 a day for the hire of the crushing plant and the

employees who operated it, with Marshall to supply fuel, and Sanders undertaking to

supply oil and accepting responsibility for repairs. In the result, however, Marshall paid

for oil and repairs required by the crusher, which proved not to be in the best working

order. Although the learned trial judge did not make precise findings on all matters, it

seems a compelling conclusion from the…

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 Sanders Bros v Marshall

Details

AGLC: Sanders Bros v Marshall [1995] QCA 475
Case: [1995] QCA 475
Decision Date: 27/10/1995

CaseChat Overview and Summary

Sanders Bros filed an action against Marshall, seeking payment for a debt arising from a hire agreement. The dispute was heard in the Supreme Court of Victoria. The primary issue before the court was whether the claim for payment was barred by the statute of limitations under the Limitation of Actions Act 1958. Specifically, the court had to determine if a written acknowledgment of the debt by Marshall removed the claim from the statute's constraints, and if so, whether the acknowledgment was sufficient under section 35(3) of the Act. Additionally, the court considered if the existence of a running account between the parties created a defence not subject to any time limitation.

The court examined the nature of the written acknowledgment and assessed whether it constituted an unequivocal admission of liability, as required by the statute. The acknowledgment in question was found to be a document where Marshall admitted to owing a certain sum but did not explicitly state an acceptance of the entire amount claimed. The court concluded that the acknowledgment did not meet the criteria for removing the claim from the statute's constraints under section 35(3). Furthermore, the court found that there was indeed a running account between the parties, but this did not exempt the claim from the statute of limitations. The acknowledgment did not sufficiently revive the claim as it did not encompass all the amounts claimed.

In its decision, the court held that the acknowledgment of indebtedness was not sufficient to take the claim outside the statute of limitations. The court also held that while a running account existed, it did not provide a defence against the statute's bar. Consequently, the claim was dismissed as time-barred. The court did not find it necessary to rule on the existence of the running account as it did not affect the outcome of the statute of limitations issue.

Orders