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Sokolowski v Craine

Sokolowski v Craine

Case [2019] NSWSC 1123 30 August 2019

Appeal

Limitation Periods

Civil Litigation & Procedure

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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 period
Legislation 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, 40
Cases 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 705
Texts Cited: G E Dal Pont, Law of Limitation (2016, LexisNexis Butterworths)
Category: Principal judgment
Parties: Carmina Sokolowski (Plaintiff)
David William Craine (Defendant)
Representation:
Counsel:
J Sleight (Plaintiff)
H Mann (Defendant)
Solicitors:
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

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.
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.
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).
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.
This appeal was commenced by summons…

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 Sokolowski v Craine

Details

AGLC: Sokolowski v Craine [2019] NSWSC 1123
Case: [2019] NSWSC 1123
Decision Date: 30 August 2019

CaseChat Overview and Summary

The appeal was brought by the first appellant, Sokolowski, against the decision of the respondent Craine, which was handed down in the Local Court of New South Wales. Sokolowski sought repayment of a loan made to Craine, asserting that the Local Court had erred in its application of the Limitation Act 1969 (NSW). Specifically, Sokolowski argued that the Local Court misapplied the statutory provisions concerning the limitation period for debt repayment, and that the repayments and acknowledgements of debt by Craine had restarted the limitation period.

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