Burner v Sanctuary Homes Pty Ltd and Dimov [2018] NSWCA 294

Burner v Sanctuary Homes Pty Ltd and Dimov [2018] NSWCA 294

The cause of action on which the respondents succeeded was not based on fraud or deceit. The findings below, even if they described unconscionable conduct, did not amount to fraud in the common law sense required to engage s 55(1)(a) of the Limitation Act 1969 (NSW). There was no sufficient evidence or finding that the appellant knew, at the relevant time, she was not entitled to the funds, or that the alleged fraud was only discoverable at a later date. Therefore, the limitation defence succeeded and the appeal was allowed.

Parties
Appellant: Lee Burner; First Respondent: John Dimov; Second Respondent: Sanctuary Homes Pty Ltd
Jurisdiction
Australia
Judgment Date
04 December 2018
Procedural Posture
Civil / Appeal From District Court to Court of Appeal
Outcome
Appeal allowed; judgment in favour of appellant
Legal Topics
Fraud, Deceit, Contract, Limitation Periods
Limitation of Actions Fraud Deceit Contract Limitation Periods

Case Brief

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Parties

Lee Burner

Appellant

John Dimov

First Respondent

Sanctuary Homes Pty Ltd

Second Respondent

Procedural Posture

Civil / Appeal From District Court to Court of Appeal

Legal Issues

  1. 1 When did the limitation period commence for a claim based on fraud or deceit concerning payment of the balance of purchase price for land?
  2. 2 Does s 55(1)(a) of the Limitation Act 1969 (NSW) apply to postpone the limitation period in this case?

Ratio Decidendi

The cause of action on which the respondents succeeded was not based on fraud or deceit. The findings below, even if they described unconscionable conduct, did not amount to fraud in the common law sense required to engage s 55(1)(a) of the Limitation Act 1969 (NSW). There was no sufficient evidence or finding that the appellant knew, at the relevant time, she was not entitled to the funds, or that the alleged fraud was only discoverable at a later date. Therefore, the limitation defence succeeded and the appeal was allowed.

Court Disposition

Appeal allowed; judgment in favour of appellant

Orders

  • The appeal is allowed.
  • The orders and judgment made in the District Court are set aside.