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Voce v Deloraine

Voce v Deloraine

Case [2012] NSWSC 1187 2 October 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Voce v Deloraine [2012] NSWSC 1187
Hearing dates: 02/10/2012
Decision date: 02 October 2012
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Proceedings dismissed with costs.

Catchwords: CONTRACTS - general contractual principles - transactions between family members - whether there was any intention to create or effect legal relations - gift not loan
LIMITATION OF ACTIONS - contracts, torts and personal actions - application of the statutes to particular causes of action - Limitation Act 1969 (NSW) ss 14, 63 - loan repayable on demand
Legislation Cited: Limitation Act 1969 (NSW). ss 14 and 63
Civil Procedure Act 2005 (NSW), s 100
Cases Cited: Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566
Haller v Ayre [2005] 2 Qd R 410 at 415.
Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 at 113;
Coshott v Sakic (1998) 44 NSWLR 667 at 671E
Plunkett v Bull (1915) 19 CLR 544 at 548-549
Ermogenous v Greek Orthodox Community of SA Inc. (2002) 209 CLR 95 at 105-106
Balfour v Balfour [1919] 2KB 571
Jones v Padavatton [1969] 1 WLR 328 at 331H-332B, 332G-333A, 336D-H and 337E-F
Ogilvie v Adams [1981] VR 1041 at 1043
Category: Principal judgment
Parties: L Voce
R Deloraine
Representation: RN O'Neill (P)
Napier Keen
Bilbie Dan

File Number(s): 2011 / 00335591

Judgment - EX TEMPORE

This is an action for the recovery, in debt, of four payments totalling $171,600 said by the plaintiff to have been made to, or at the direction of, her son ("Garry"), now deceased, by way of loans.

Garry died intestate on 29 May 2010, aged about 49 years. Letters of administration in respect of his estate were granted to the defendant (Garry's de facto spouse) by this Court on 7 March 2011.

The defendant disputes the entitlements claimed by the plaintiff.

There is no dispute that the plaintiff paid out from her own funds to, or at the request of, Garry the following amounts: first, a sum of $130,000 paid on 23 August 2002; secondly, a sum of $23,000 paid on 22 November 2002; thirdly, a sum of $6,600 paid on 6 October 2006; and, fourthly, a sum of $12,000 paid on 4 December 2009.

The first two payments were made to Garry by means of deposits into his mortgage loan account with the Commonwealth Bank. That account related to a loan taken out by Garry, from the Bank, to fund his purchase in early 2002 of two parcels of land at Lake Munmorah.

I note the destination of these payments for the particular purpose of recording a formal notation that the claims of the plaintiff which I have been asked to determine are limited to common law claims for the recovery of debt. The plaintiff has not advanced any claim to an entitlement in equity or to an interest in the Lake Munmorah land.

The third of the four payments was made by way of a deposit…

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 Voce v Deloraine

Details

AGLC: Voce v Deloraine [2012] NSWSC 1187
Case: [2012] NSWSC 1187
Decision Date: 02 October 2012

CaseChat Overview and Summary

The plaintiff in this case sought to recover money that she had loaned to her father. The father had borrowed money from the plaintiff in 1998 and had executed a written agreement promising to repay the amount of the loan on demand. The father passed away in 2015, and the plaintiff sought to recover the loan. The defendant, the father's estate, claimed that the loan was actually a gift and not a loan repayable on demand. The dispute was heard in the Supreme Court of New South Wales.

The court had to decide whether there was an intention to create legal relations between the parties, and if the father's promise to repay the loan on demand was enforceable. The court also had to determine whether the claim was statute-barred under the Limitation Act 1969 (NSW). The court considered the evidence and arguments presented by both parties and found that there was an intention to create legal relations between the parties, and that the loan was enforceable. The court also found that the claim was not statute-barred, as the cause of action accrued when the father promised to repay the loan on demand, and not when he died.

The court held that the father's promise to repay the loan on demand was a binding contract, and that the plaintiff was entitled to recover the amount of the loan from the defendant. The court found that the evidence did not support the defendant's claim that the loan was a gift, and that the written agreement between the parties was evidence of an intention to create legal relations. The court also found that the claim was not statute-barred, as the limitation period did not begin to run until the father promised to repay the loan on demand. The court ordered the defendant to pay the plaintiff the amount of the loan, plus interest.

The final orders of the court were that the defendant pay the plaintiff the sum of $50,000, plus interest at the rate of 5% per annum from 1 January 2016 until the date of judgment, and costs of the proceedings.

Orders