DISTRICT COURT OF QUEENSLAND
CITATION:
Schebella v Schebella & Anor [2025] QDC 16
PARTIES:
KEVIN CHARLES SCHEBELLA
(Plaintiff)
v
MARK ANDREW SCHEBELLA
(First Defendant)and
KAREN JANE SCHEBELLA
(Second Defendant)FILE NO/S:
121/2019
DIVISION:
Civil
PROCEEDING:
Civil Claim
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
28 February 2025
DELIVERED AT:
Maroochydore
HEARING DATE:
20 and 21 February, 3 and 5 May 2023 and 5 July 2023 (with further written submissions filed on 2 and 16 August 2023)
JUDGE:
Long SC DCJ
ORDER:
There will be judgment for the plaintiff against the defendants, in the sum of $225,000.00 upon the cause of action as to debt due and owing but not otherwise, with the parties having opportunity to address the form of order to be made in this respect and as to any further or incidental orders.
CATCHWORDS:
CONTRACTS – IMPLIED TERMS – NOVATION – where the plaintiff seeks to recover debt pursuant to a written agreement, made in 2004 in respect of interfamilial arrangements regarding the occupancy of a residence and advances made by the plaintiff to a company of which the defendants were the directors – where no relief is pursued against the subsequently deregistered company – whether the written agreement was relevantly varied – whether the implication arising from the conduct of the parties in respect of the arrangements is that the written agreement was novated so that the defendants assumed the rights and liabilities of the company under that agreement
TRUSTS LAW – whether there was wrongful distribution of assets so as to engage the application of s 113 Trusts Act 1973 (Qld)
CORPORATIONS LAW – whether there was a breach of trust so as to engage the application of s 197 Corporations Act 2001
RESTITUION – money had and received – whether there is any established cause of action for restitution, by the defendants, of monies originally advanced to a company
LIMITATIONS OF ACTIONS – DEEDS – whether reliance upon a relevant limitation period was sufficiently pleaded or identified for the purposes of the trial – whether or not the agreement executed in 2004 took effect as a deed pursuant to s 45 of the Property Law Act 1974 (Qld) – whether the plaintiff’s cause of action is for a debt which is repayable on demand, attracting the principle discussed in Ogilvie v Adams [1981] VR 1041 and s10(1)(a) of the Limitations of Actions Act 1974 – whether the cause of action in debt was subject to conditions under the agreement so that the cause of action arose upon demand not made before May 2019 – whether there has been an acknowledgement of debt such as to engage s35 of the Limitations of Actions Act 1974 and s14 of the Electronic Transactions Act 2001
LEGISLATION:
Corporations Act 2001 (Qld) s 197
Electronic Transactions Act 2001, s14
Limitations of Actions Act 1974 ss 10, 35, 36
Property Law Act 1974 (Qld) ss 9(1), 45, 46C
Trusts Act 1973 (Qld) s 113CASES:
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- AGLC
- Schebella v Schebella [2025] QDC 16
- Case
- [2025] QDC 16
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether the written agreement was novated so that the defendants assumed the rights and liabilities of the company under the agreement. The court also had to consider whether there was a wrongful distribution of assets so as to engage the application of section 113 of the Trusts Act 1973 (Qld) and whether there was a breach of trust so as to engage the application of section 197 of the Corporations Act 2001. The court had to consider if there was an established cause of action for restitution by the defendants of monies originally advanced to the company. Finally, the court had to consider whether the plaintiff’s cause of action in debt was subject to conditions under the agreement and whether there was an acknowledgement of debt that engaged section 35 of the Limitations of Actions Act 1974.
The court found that the written agreement was novated, and the defendants assumed the rights and liabilities of the company under that agreement. The court held that the defendants were liable to pay the debt of $225,000.00 to the plaintiff. The court held that the cause of action was not subject to conditions under the agreement and that the cause of action arose upon demand not made before May 2019. The court found that there was no wrongful distribution of assets, breach of trust, or cause of action for restitution. The court held that the plaintiff’s cause of action in debt was not subject to a limitation period, and there was no acknowledgement of debt that engaged section 35 of the Limitations of Actions Act 1974.
There will be judgment for the plaintiff against the defendants, in the sum of $225,000.00 upon the cause of action as to debt due and owing but not otherwise, with the parties having opportunity to address the form of order to be made in this respect and as to any further or incidental orders.
Orders
Orders of the court
There will be judgment for the plaintiff against the defendants, in the sum of $225,000.00 upon the cause of action as to debt due and owing but not otherwise, with the parties having opportunity to address the form of order to be made in this respect and as to any further or incidental orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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