QUEENSLAND. Money lent-Action to recover-Defence of payment-Onus of proof-Defend. ant to prove payment.
In an action for money lent where the defence of payment is raised, the onus of proving payment lies upon the defendant. July 26;
Nelson v. Campbell (1928) V.L.R. 364, disapproved. SYDNEY, Aug. 30.
Nature of the liability to pay a debt of a kind formerly recoverable in debt or indebitatus assumpsit, and pleading payment by way of discharge as a defence to an action for indebtedness in respect of an executed consideration,
Decision of the Supreme Court of Queensland (Philp J.), affirmed.
APPEAL from the Supreme Court of Queensland.
By writ of summons issued out of the Supreme Court of Queens- land on 15th July 1953 Queensland Trustees Limited as executor of the will of Gertrude Kathleen Halley deceased sought to recover from the defendant Frank Stanley Young the sum of £11,661 10s. Od. as and for money payable by the defendant to the plaintiff for money lent by the said Gertrude Kathleen Halley deceased in her lifetime to the defendant. By the particulars of claim the plaintiff alleged that the deceased had on 14th February 1950 lent eight separate sums to the defendant, being amounts of £392, £595, £1,000, £5,000, £875, £450, £550 and £730, that a further sum of £1,420 had been SO lent on 21st September 1951 and that yet another sum of £699 10s. Od. had been SO lent on 18th February 1952. The
deceased died on 14th July 1952 and probate of her last will was granted to the plaintiff on 8th January 1953.
By his defence dated 4th September 1953 the defendant admitted that each of the loans alleged by the plaintiff had in fact been made to him by the deceased but claimed that he had repaid to her in her lifetime each and every of them.
The action was tried by Philp J. sitting without a jury and having heard the evidence his Honour entered judgment in favour of the plaintiff for the amount claimed, as he disbelieved the defendant's evidence as to the repayment of the several amounts lent.
From this decision the defendant appealed to the High Court upon the ground that his uncontradicted testimony as to the repay- ment of the loans ought to have been accepted and that in any event there was no evidence to disprove repayment, the burden of disproof lying upon the plaintiff.
Further material facts and the arguments of counsel appear sufficiently in the judgment of the Court hereunder.
J. G. Garland, for the appellant. J. D. McGill and J. D. Dunn, for the respondent.
Cur. adv. vult.
THE COURT delivered the following written judgment :- The question at issue upon this appeal is whether a finding that the defendant appellant did not repay a debt for money lent should be sustained.
The plaintiffs respondents are the executors of Gertrude Kathleen Halley…
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.
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AGLC
Young v Queensland Trustees Ltd [1956] HCA 51
Case
[1956] HCA 51
Decision Date
CaseChat Overview and Summary
The plaintiff, Queensland Trustees Limited, as executor of the estate of Gertrude Kathleen Halley, sued the defendant, Frank Stanley Young, for money lent. The defendant admitted receiving the loans but claimed to have repaid them in full during the deceased's lifetime. The Supreme Court of Queensland, per Philp J., found in favour of the plaintiff, disbelieving the defendant's evidence of repayment. The defendant appealed to the High Court of Australia.
The central legal issue before the High Court was whether the onus of proving repayment of a debt lay with the plaintiff, as contended by the defendant, or with the defendant, as asserted by the plaintiff. The defendant argued that his uncontradicted testimony regarding repayment should have been accepted and that the plaintiff bore the burden of disproving repayment.
The High Court affirmed the decision of the Supreme Court, holding that the onus of proving payment rests upon the defendant who raises it as a defence. The Court extensively reviewed the historical development of pleading, particularly in actions of debt and indebitatus assumpsit, to demonstrate that payment has always been considered a matter of discharge, requiring the defendant to plead and prove it. The Court disapproved of the reasoning in *Nelson v. Campbell* (1928) V.L.R. 364, which had suggested the onus lay with the plaintiff. The Court found no reason to disagree with Philp J.'s assessment of the defendant's evidence, noting the inherent improbabilities in his account and the lack of any corroborating evidence for his claims of repayment.
Consequently, the appeal was dismissed with costs.