Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249

Supreme Court New South Wales

Medium Neutral Citation: Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249 Hearing dates: 23 to 25 August 2021, 27 August 2021 Date of orders: 1 October 2021 Decision date: 01 October 2021 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The proceedings be dismissed; (2) Direct the parties to confer within seven days in relation to the appropriate order as to costs; (3) In the event that agreement is reached on the appropriate orders as to costs, the parties to file the proposed orders on or before 5.00pm on 15 October 2021; (4) In the event that no agreement is reached on the appropriate orders as to costs, each party to file and serve: (a) their proposed orders as to costs and any submissions in support of the proposed order that are not to exceed four pages on or before 22 October 2021; (b) any submissions in reply that do not exceed four pages on or before 29 October 2021. Catchwords: LOAN RECOVERY – whether defendant borrowed money from his late Aunty in 2010 – inferences drawn from finding of completion of cheque butt – loan established – whether limitation period suspended because of relevant disability affecting lender – disability must be in the management of her affairs in relation to the cause of action the subject of the proceedings – only evidence adduced specific to the loan suggested lender not substantially impaired in relation to cause of action – limitations on evidence from expert who did not examine lender – onus of proof not discharged – proceedings dismissed. Legislation Cited: Limitation Act 1969 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Drivas v Jakopovic [2019] NSWCA 2018 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCCA 369 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kotulski v Attard [1981] 1 NSWLR 115 Shalhoub v Buchanan [2004] NSWSC 99 State of New South Wales v Harlum [2007] NSWCA 120 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 182 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51 Category: Principal judgment Parties: Ida Wolff by her tutor Steven Binetter (Plaintiff) Ronald Binetter (Defendant) Representation: Counsel: D Studdy SC; C Freeman (Plaintiff) G Sirtes SC; C O'Neill (Defendant)