Supreme Court
New South Wales
Medium Neutral Citation: Sokolowski v Craine [2019] NSWSC 1123 Hearing dates: 15 June 2018 Date of orders: 30 August 2019 Decision date: 30 August 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave to appeal is refused.
(2) The plaintiff is to pay the defendant’s costs.Catchwords: APPEAL – appeal from Local Court – leave to appeal – whether appeal grounds raise questions of law – leave refused
APPEAL – appeal from Local Court – repayment of loan – operation of Limitation Act – whether repayments and/or acknowledgements of debt restarted the limitation periodLegislation Cited: Civil Procedure Act 2005 (NSW), ss 21, 100
Evidence Act 1995 (NSW), s 140
Limitation Act 1969 (NSW), ss 14, 54, 63
Local Court Act 2007 (NSW), s 39, 40Cases Cited: Bucknell v Commercial Baking Co of Sydney Ltd (1937) 58 CLR 155; [1937] HCA 35
De Armas v Peters [2015] NSWSC 1050
Grant v YYH Holdings Pty Ltd [2012] NSWCA 360
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312
MacPhail v MacPhail [2017] NSWSC 942
Screenco Pty Ltd v R L Drew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319
Stage Club Ltd v Miller’s Hotel Pty Ltd (1981) 150 CLR 535; [1981] HCA 71
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705Texts Cited: G E Dal Pont, Law of Limitation (2016, LexisNexis Butterworths) Category: Principal judgment Parties: Carmina Sokolowski (Plaintiff)
David William Craine (Defendant)Representation: Counsel:
Solicitors:
J Sleight (Plaintiff)
H Mann (Defendant)
J P Gould (Plaintiff)
Swaab Attorneys (Defendant)
File Number(s): 2018/71632 Decision under appeal
- Court or tribunal:
- Local Court
- Jurisdiction:
- General Civil Division
- Citation:
- Unreported
- Date of Decision:
- 5 February 2018
- Before:
- Halburd LCM
- File Number(s):
- 2016/382263
Judgment
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The plaintiff seeks leave to appeal from the decision of Magistrate Halburd in the Local Court at Sydney of 5 February 2018. In that decision, the learned Magistrate gave judgment for the plaintiff in the sum of $37,780.29.
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The plaintiff’s claim, as set out in her amended statement of claim, was for $79,000 plus interest and costs. Her claim arose out of her allegations as to sums of money she loaned to her former de facto partner, the defendant.
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In issue, amongst other things, was whether there was any provision for interest on the loans, whether some items should be set off, and whether various payments made were in truth repayment of the loan and whether any payments she made to the defendant were statute barred by operation of ss 14 and 63 of the Limitation Act 1969 (NSW).
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There was also an issue as to whether the repayments the plaintiff alleges were made would restart the limitation period, pursuant to s 54 of the Limitation Act, and whether acknowledgements of debt signed by the defendant in 2011 and 2012 operated to “re-start” the reckoning of the limitation period.
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This appeal was commenced by summons…
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- AGLC
- Sokolowski v Craine [2019] NSWSC 1123
- Case
- [2019] NSWSC 1123
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the appeal grounds raised questions of law warranting leave to appeal, and whether the Local Court correctly applied the statutory provisions regarding the limitation period. The court had to determine whether Craine's repayments and acknowledgements of debt constituted sufficient acknowledgments to restart the limitation period under the Limitation Act.
The court found that the appeal grounds did not raise questions of law that warranted leave to appeal. The court considered that the appeal was essentially a re-evaluation of the facts and evidence, rather than a legal question. In relation to the limitation period, the court held that Craine's repayments and acknowledgements of debt did not restart the limitation period as required by the Limitation Act. The court concluded that there was no error in the Local Court's application of the statutory provisions. Consequently, the appeal was dismissed, and leave to appeal was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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