Kation Pty Ltd v Lamru Pty Ltd (No 2) [2012] NSWSC 356

Supreme Court New South Wales

Medium Neutral Citation: Kation Pty Ltd v Lamru Pty Ltd (No 2) [2012] NSWSC 356 Hearing dates: 11 and 12 April 2012 Decision date: 17 April 2012 Jurisdiction: Equity Division Before: Ball J Decision: Kation's claim be dismissed with costs Catchwords: CONTRACT - existence of contract - whether plaintiff has failed to prove the agreement upon which it sues. LIMITATION OF ACTIONS - whether there has been a confirmation for the purposes of s 54 of the Limitation Act 1969 - whether there has been a relevant acknowledgement - whether alleged acknowledgment has been signed - where no signature in the ordinary sense of the word. Legislation Cited: Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Limitation Act 1969 (NSW) Cases Cited: Browne v Dunn (1893) 6 R 67 Geo Thompson (Australia) Pty Ltd v Vittadello [1978] VR 199 Leeman v Stocks [1951] Ch 941 McGuren v Simpson [2004] NSWSC 35 Pirie v Saunders (1961) 104 CLR 149 Category: Principal judgment Parties: Kation Pty Limited (Plaintiff) Lamru Pty Limited (First Defendant) Russell William Lamb (Second Defendant) Representation: JT Johnson (Plaintiff) MW Young / I Tam (Defendants) Toomey Pegg (Plaintiff) Lyons & Lyons (Defendants) File Number(s): 2002/62736

Judgment

Introduction 1This proceeding is one of a number arising out of the breakdown in 1996 of the business relationship between Mr Peter Lewis and Mr Russell Lamb. In this proceeding (which was commenced on 27 June 2002), the plaintiff, Kation Pty Ltd, which is a company controlled by Mr Lewis, claims an amount of $250,000 from Mr Lamb or Lamru Pty Ltd, a company controlled by Mr Lamb, in connection with Lamru's acquisition of a 40 percent interest in the Nortex Unit Trust (the Trust) on 19 June 1991. Kation alleges that it lent Mr Lamb or Lamru the sum of $250,000 to assist Lamru to pay the purchase price for the units in the Trust and that Lamru has not repaid any part of that amount. Alternatively, Kation alleges that Mr Lamb on behalf of Lamru acknowledged on 28 June 1996 and 3 June 1997 that Lamru was indebted to Kation in the sum of $200,000 in respect of the loan. By reason of those matters, Kation claims $250,000, or alternatively $200,000, plus interest. 2The defendants raise two defences to Kation's claim. First, they deny the agreement pleaded by Kation. Second, they say that any claim is statute barred. 3A crossclaim has also been filed in the proceedings. That crossclaim raises different factual issues from Kation's claim and, in circumstances which are not clear from the material before me, the parties agreed some time ago that Kation's claim should be determined separately. Consequently, this judgment is not concerned with the cross-claim.