Scholfield v Scholfield - [2011] QDC 306

DISTRICT COURT OF QUEENSLAND

CITATION:

Scholfield v Scholfield & Anor [2011] QDC 306

PARTIES:

STUART ASTLEY SCHOLFIELD
(Plaintiff)

v

JULIAN ASTLEY SCHOLFIELD

and

BERWICK JOHN ASTLEY SCHOLFIELD
(Defendants)

FILE NO/S:

No 542 of 2008

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

15 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 April 2011

JUDGE:

Farr SC, DCJ

ORDER:

1.          The plaintiff’s claim is dismissed.

2.          The defendants’ counterclaim seeking a declaration that the plaintiff’s claim has been settled and that there has been accord and satisfaction is dismissed.

3.          The defendants’ alternative counterclaim for $60,000.00 from the plaintiff as money held and received is dismissed.

4.          It is declared that the defendants are each entitled to $127,578.64 held on account of this action.

5. Interest on that sum for each defendant is allowed pursuant to s 47 of the Supreme Court Act 1995 (Qld) at the rate of 10% from 18 January 2008 to 11 May 2011, a period of 1209 days producing a figure of $42,254.55 ($34.95 per day).

6.          I will hear the parties as to costs.

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – whether the plaintiff’s claim is statute barred pursuant to s 10 of the Limitation of Actions Act 1974 (Qld) – whether s 35(3) of the Limitation of Actions Act 1974 (Qld) has application – whether the contents of the two letters constitute an acknowledgement of the debt or the plaintiff’s claim – where the contents of the two letters constitute an offer to resolve the matter s 35(3) of the Limitation of Actions Act 1974 (Qld) has no application and the plaintiff’s claim is statute barred

AGREEMENT – TERMS – whether the plaintiff and the defendants entered into an agreement on the terms alleged by the plaintiff – the plaintiff could not prove the terms of the agreement on the balance of probabilities – the agreement between the plaintiff and the defendants extended only to the plaintiff guaranteeing the loan with his expressed desire that the defendants do their best to meet outgoing expenses and loan repayments – loan, rates and insurance premium payments were made by the plaintiff to advance the defendants by way of gift or a gratuitous advancement for their benefit

SETTLEMENT – OFFER TO SETTLE – whether the defendants’ offer for the plaintiff to claim half of the sale proceeds plus $60,000.00 was an offer to settle the matter or paid under a mistake of fact – the money was not paid on the understanding that it would settle the matter, nor was it paid under a mistake of fact

Limitation of Actions Act 1974 (Qld), s 10, s 35, s 36
Property Law Act 1974 (Qld), s 84

Supreme Court Act 1995 (Qld), s 47

Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, cited
Dungate v Dungate (1965) 1 WLR 1477, cited
In the marriage of Steele (1992) 107 FLR 143, cited
McTaggart v McTaggart [1949]…

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 Scholfield v Scholfield

Details

AGLC: Scholfield v Scholfield [2011] QDC 306
Case: [2011] QDC 306
Decision Date: 15 December 2011

CaseChat Overview and Summary

The case of Scholfield v Scholfield arose in the Queensland Supreme Court where the plaintiff, Mr Scholfield, sought to enforce a personal guarantee he had provided to the defendants, his former partners, for a loan they had taken out. The defendants, in turn, denied liability on the guarantee and counterclaimed for a declaration that the plaintiff's claim had been settled, as well as seeking a refund of $60,000 they had paid to the plaintiff. The central legal issues were whether the plaintiff's claim was statute-barred, whether certain letters constituted an acknowledgement of debt or an offer to settle, and whether the terms of the alleged agreement were as the plaintiff claimed.

The court examined whether the plaintiff's claim was barred by limitation pursuant to section 10 of the Limitation of Actions Act 1974 (Qld). The court held that the contents of the letters exchanged between the parties did not constitute an acknowledgement of the debt or the plaintiff's claim, nor did they represent an offer to settle. Instead, the court found that the plaintiff's claim was barred by limitation because the letters did not reset the limitation period under section 35(3) of the Limitation of Actions Act 1974 (Qld). Furthermore, the court found that the plaintiff could not prove the terms of the agreement on the balance of probabilities and that the payments made by the plaintiff were not under a mistaken understanding of settling the matter.

The court dismissed the plaintiff's claim and the defendants' counterclaim for a declaration of settlement. The alternative counterclaim for the return of $60,000 was also dismissed. The court declared that the defendants were each entitled to $127,578.64 held in relation to the action, with interest at 10% per annum from 18 January 2008 to 11 May 2011. The court reserved the decision on costs for further submissions from the parties.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. The defendants’ counterclaim seeking a declaration that the plaintiff’s claim has been settled and that there has been accord and satisfaction is dismissed.

3. The defendants’ alternative counterclaim for $60,000.00 from the plaintiff as money held and received is dismissed.

4. It is declared that the defendants are each entitled to $127,578.64 held on account of this action.

5. Interest on that sum for each defendant is allowed pursuant to s 47 of the Supreme Court Act 1995 (Qld) at the rate of 10% from 18 January 2008 to 11 May 2011, a period of 1209 days producing a figure of $42,254.55 ($34.95 per day).

6. I will hear the parties as to costs.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Scholfield v Scholfield & Anor [2011] QDC 306
PARTIES:	STUART ASTLEY SCHOLFIELD (Plaintiff) v JULIAN ASTLEY SCHOLFIELD and BERWICK JOHN ASTLEY SCHOLFIELD (Defendants)
FILE NO/S:	No 542 of 2008
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court
DELIVERED ON:	15 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7 April 2011
JUDGE:	Farr SC, DCJ
ORDER:	1. The plaintiff’s claim is dismissed. 2. The defendants’ counterclaim seeking a declaration that the plaintiff’s claim has been settled and that there has been accord and satisfaction is dismissed. 3. The defendants’ alternative counterclaim for $60,000.00 from the plaintiff as money held and received is dismissed. 4. It is declared that the defendants are each entitled to $127,578.64 held on account of this action. 5. Interest on that sum for each defendant is allowed pursuant to s 47 of the Supreme Court Act 1995 (Qld) at the rate of 10% from 18 January 2008 to 11 May 2011, a period of 1209 days producing a figure of $42,254.55 ($34.95 per day). 6. I will hear the parties as to costs.
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – whether the plaintiff’s claim is statute barred pursuant to s 10 of the Limitation of Actions Act 1974 (Qld) – whether s 35(3) of the Limitation of Actions Act 1974 (Qld) has application – whether the contents of the two letters constitute an acknowledgement of the debt or the plaintiff’s claim – where the contents of the two letters constitute an offer to resolve the matter s 35(3) of the Limitation of Actions Act 1974 (Qld) has no application and the plaintiff’s claim is statute barred AGREEMENT – TERMS – whether the plaintiff and the defendants entered into an agreement on the terms alleged by the plaintiff – the plaintiff could not prove the terms of the agreement on the balance of probabilities – the agreement between the plaintiff and the defendants extended only to the plaintiff guaranteeing the loan with his expressed desire that the defendants do their best to meet outgoing expenses and loan repayments – loan, rates and insurance premium payments were made by the plaintiff to advance the defendants by way of gift or a gratuitous advancement for their benefit SETTLEMENT – OFFER TO SETTLE – whether the defendants’ offer for the plaintiff to claim half of the sale proceeds plus $60,000.00 was an offer to settle the matter or paid under a mistake of fact – the money was not paid on the understanding that it would settle the matter, nor was it paid under a mistake of fact Limitation of Actions Act 1974 (Qld), s 10, s 35, s 36 Property Law Act 1974 (Qld), s 84 Supreme Court Act 1995 (Qld), s 47 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, cited Dungate v Dungate (1965) 1 WLR 1477, cited In the marriage of Steele (1992) 107 FLR 143, cited McTaggart v McTaggart [1949]…