SUPREME COURT OF QUEENSLAND
CITATION:
Spoor & Ors v Price & Ors [2019] QSC 53
PARTIES:
CHRISTINE CLAIRE SPOOR AND KERRY JOHN SPOOR AS TRUSTEES & ORS
(plaintiffs)
v
MATTHEW WARD PRICE AND DANIEL JAMES PRICE AS EXECUTORS OF THE ESTATE OF ALAN LESLIE PRICE, DECEASED
(first defendant)
AND
ALLANNA MERCIA PRICE
(second defendant)
AND
JAMES BURNS PRICE
(third defendant)
AND
GLADYS ETHEL PRICE BY HER LITIGATION GUARDIAN ERIN ELIZABETH TURNER(fourth defendant)
FILE NO:
8069 of 2017
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 April 2019
DELIVERED AT:
Brisbane
HEARING DATE:
17 October 2018; last written submission 5 April 2019
JUDGE:
Dalton J
ORDERS:
1. Judgment for the first, second and fourth defendants against the plaintiffs.
2. Plaintiffs’ application dismissed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – LIMITATION OF ACTIONS – MORTGAGES – RECOVERY OF POSSESSION BY MORTGAGEE – where the defendants mortgaged land as security for a loan from the plaintiff – where the defendants failed to repay monies owing under the mortgages – where the plaintiff claimed monies due and recovery of possession under mortgages – where defendants pleaded ss 10, 13 and 26 of Limitation of Actions Act 1974 (Qld) – where the plaintiff in reply to the defences relied on a clause of the mortgage as excluding the operation of the Limitation of Actions Act – whether it is possible to contract out of the Limitation of Actions Act – whether s 24 of the Limitation of Actions Act does more than bar a remedy but extinguishes title
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – whether the relevant clause was ambiguous – where regard can be properly had to the contra proferentum rule – whether the plaintiffs are entitled for recovery of possession
Land Title Act 1994 (Qld), s 74
Limitation of Actions Act 1974 (Qld), s 5, s 10, s 13, s 24 and s 26
Property Law Act 1974 (Qld), s 84
Real Property Act 1861 (Qld), s 60Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Commonwealth v Verwayen (1990) 170 CLR 394
English, Scottish & Australian Bank Ltd v Phillips (1937) 57 CLR 302
Figgins Holdings v SEAA Enterprises (1999) 196 CLR 254
Levy v Williams [1925] VLR 615
Lindsay v Smith [2002] Qd R 610
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Newton, Bellamy & Wolfe v State Government Insurance Office (Qld) [1986] 1 Qd R 431
Owen v Owen (1981) ANZ ConvR 14
Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32
Sardon Pty Ltd v The Registrar of Titles [2004] WASC 56
Cameron v Blau & Anor [1963] Qd R 421
Szymonowski & Co v Beck & Co [2013] EWCA Civ 38
The National Bank of Tasmania Ltd (in liquidation) & Anor v McKenzie [1920] VLR 411
The…
Continue reading Spoor v Price
Sign in free to access the full text
- AGLC
- Spoor v Price [2019] QSC 53
- Case
- [2019] QSC 53
- Decision Date
CaseChat Overview and Summary
The court found that there was no ambiguity in the relevant clause and rejected the defendants' argument that public policy precluded contracting out of the Limitation of Actions Act. The court held that the statute could be contracted out of and that the clause in the mortgage deed effectively excluded the application of the Act. The court further determined that section 24 of the Limitation of Actions Act did not merely bar a remedy but actually extinguished the title of the party whose period of limitation had expired. Consequently, the defendants' title to the properties was extinguished, and they were entitled to retain possession.
The court dismissed the plaintiff's application and entered judgment in favour of the first, second, and fourth defendants against the plaintiff, thereby affirming the defendants' right to retain possession of the mortgaged properties. The plaintiff's claim for recovery of the outstanding loan amounts and possession of the properties was denied.
Orders
Orders of the court
1. Judgment for the first, second and fourth defendants against the plaintiffs.
2. Plaintiffs’ application dismissed.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 24 of the Limitation of Actions Act provides:“24 Extinction of title after expiration of period of limitation(1) Subject to section 17, subsection (2) of this section and the Real Property Act 1861,[14] where the period of limitation prescribed by this Act within which a person may bring an action to recover land (including a redemption action) has expired, the title of that person to the land shall be extinguished.…”[14] It was not argued that any of these three pieces of legislation were relevant, and that seems correct. Section 26 of the Limitation of Actions Act provides:“26 Actions to recover money secured by mortgage or charge or to recover proceeds of the sale of land(1) An action shall not be brought to recover a principal sum of money secured by a mortgage or other charge on property whether real or personal nor to recover proceeds of the sale of land after the expiration of 12 years from the date on which the right to receive the money accrued.…(4) The provisions of this section do not apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act with respect to an action to recover land apply to such an action.(5) An action to recover arrears of interest payable in respect of a sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land or to recover damages in respect of such arrears shall not be brought after the expiration of 6 years from the date on which the interest became due.…”Construction of clause 24 The plaintiffs’ pleading by way of reply is that the defendants promised not to take the limitation point; have breached that promise, and are now estopped from taking a limitations defence – see [10] above. This pleading confuses legal principles. There is no room for the operation of estoppel in this case. It is not said that the defendant mortgagors have conducted themselves in any way so as to be estopped from raising a limitations point. Nor is there any plea of election, or, if it is a separate concept, waiver. Here, in truth, the plaintiffs rely upon a contracting out of the Limitations Act, not election, estoppel or waiver.[15] The application was conducted on that basis. [15] See Brennan J in Commonwealth v Verwayen (1990) 170 CLR 394, p 421: “Election, estoppel and waiver are cognate concepts: each relates to the sterilization of a legal right otherwise than by contract”. See also Mason CJ to the same effect, “In these cases, unless consideration is present, something in the nature of an election or an estoppel is required”, p 406, my underlining in both quotations. The second defendant argued that, as a matter of public policy, it was not possible to contract out of the provisions of the Limitations Act. Reliance was placed on American cases.[16] I have found one brief statement of obiter in an English case to the same effect.[17] This passage was cited with approval in a later English case,[18] also obiter. The original passage, and indeed the wider basis for decision in that case, was not followed in the Queensland case of Newton, Bellamy & Wolfe v State Government Insurance Office (Qld).[19] [16] Calvin W. Corman, Limitation of Actions, Volume 1, paragraph 3.2.1; R.W. Hirtler v Jack Hirtler, 566 P.2d 1231, No. 14916, Supreme Court of Utah, June 27, 1977; Marilyn M. Haggerty v Lynn C. Williams, 84 Conn. App. 675, 855 A.2d 264, Appellate Court of Connecticut, August 24, 2004, Atlantic Reporter 21 Series; M. Abraham Ahmad v Eastpines Terrace Apartments, INC., et al, 2000 Md. App. 362, 28 A.3d 1.[17] The Sauria and The Trent [1957] 1 Lloyds Rep 396, 400, see [39] and [40] below.[18] The Seaspeed America [1990] 1 Lloyds Rep 151, 153.[19] [1986] 1 Qd R 431.