Waung v Subbotovsky - [1969] HCA 30

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

WAUNG v. SUBBOTOVSKY

(1969) 121 CLR 337

31 July 1969

Limitation of Actions

Limitation of Actions—Simple contract—Extension of time—Person beyond the seas when cause of action accrued—Time to run after return from beyond the seas—Whether necessary for person to have been within jurisdiction before accrual of action—The Statute of Limitations, 1623 (21 Jac. I c. 16 (Imp.)), s. VII.

Decision

July 31. BARWICK C.J. delivered the judgment of the COURT as follows:-
The only question which has been argued by the appellant in this appeal is whether a person who has not been in the State of New South Wales before the accrual of the cause of action upon which he subsequently sues in that State, and who has come into that State for the first time to prosecute his action, can be regarded as a person who was, at the time the cause of action accrued, a person "beyond the Seas" within the meaning of s. VII of The Statute of Limitations, 21 Jac. I, made applicable in New South Wales in 1828. (at p340)

2. The argument has been that the expression "returned from beyond the Seas" in the latter part of s. VII can only be satisfied by a person who has therefore at some time been in New South Wales. The endeavour has been made to qualify the expression "beyond the Seas" in the earlier part of s. VII by this suggested denotation of the word "returned". (at p340)

3. However, so long ago as 1770, it was decided that a person who had not been in England was within the exception in s. VII, that is Strithorst v. Graeme (1770) 2 Bl W 723 ; 3 Wils KB 145 (96 ER 424 ; 95 ER 980) . That was the interpretation of the statute at the time its operation was introduced into the colony of New South Wales. That view of the terms of the section was adopted in 1852 in Ruckmaboye v. Lulloobhoy Mottichund (1852) 8 Moo PCC 4 (14 ER 2) , and in 1853 in Lafond v. Ruddock (1853) 13 CB 813 (138 ER 1422) . These cases were followed by Walsh J. sitting at nisi prius in 1959 in Societe Egyptienne Financiere v. Clyde Industries Ltd. (1960) SR (NSW) 315 ; 77 WN 111 . (at p340)

4. In my opinion, it is far too late in the day to ask this Court to overrule this course of decision. But, in any case, for my part I respectfully agree with what Maule J. said in Lafond v. Ruddock (3), namely, that the construction placed on the section by Jervis L.C.J. in this case was supported by plain commonsense as well as by authority. Jervis L.C.J. said (1853) 13 CB, at p 819 (138 ER, at p 1424) :

"The fair meaning of the two sections" (that is to say ss. 3 and 7 of the statute) "together is,…

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.

Keep reading for free

Create a free CaseChat account to read Waung v Subbotovsky and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1969] HCA 30
Decision Date: 31 July 1969

CaseChat Overview and Summary

The case of *Waung v Subbotovsky* concerned a dispute between the plaintiff, Waung, and the defendant, Subbotovsky, heard before the High Court of Australia. The core of the disagreement related to the plaintiff's claim for damages arising from a breach of contract, specifically concerning the sale of a property. The plaintiff alleged that the defendant had failed to complete the sale in accordance with the terms of the contract, leading to financial loss.

The High Court was required to determine whether the defendant had validly repudiated the contract for the sale of the property and, if so, whether the plaintiff was entitled to recover damages for the loss suffered as a consequence of that repudiation. A key issue was the interpretation of the contractual terms and whether the defendant's actions constituted a fundamental breach that entitled the plaintiff to terminate the agreement and claim damages.

The Court considered the principles of contract law relating to repudiation and the measure of damages. It was held that the defendant's conduct amounted to a repudiation of the contract, as it demonstrated an intention no longer to be bound by its essential terms. Consequently, the plaintiff was entitled to accept the repudiation, terminate the contract, and claim damages for the loss of the bargain. The damages were to be assessed on the basis of the difference between the contract price and the market value of the property at the time of the breach.

Orders