Reliance Financial Services Pty Ltd v Pineiro [2017] NSWSC 1739

Reliance Financial Services Pty Ltd v Pineiro [2017] NSWSC 1739

The Deed of Loan was validly executed because s 38(1) of the Conveyancing Act 1919 (NSW) does not prohibit a person who signs for a corporate party, and is not otherwise a party, from attesting the execution of another party to the deed. Therefore, the deeds limitation period of 12 years applied. The cause of action for repayment of the principal did not accrue until 36 months after 8 February 2001. Interest accrued monthly but was not payable until the principal repayment date. The Limitation Act therefore barred recovery of only interest which accrued outside the 6 years before the claim, but not the principal. The cheque for $30,000 was delivered to the borrower. The plaintiff as...

Jurisdiction
Australia
Judgment Date
14 December 2017
Procedural Posture
Principal Judgment / Judgment Following Final Hearing
Outcome
Judgment for the plaintiff against the first defendant.
Legal Topics
['statutory Interpretation' 'execution and Attestation of Deeds' 'mortgages and Equitable Charges' 'limitation of Actions' 'interest Under Loan Agreements']
['equity' 'contract Law' 'property Law'] ['statutory Interpretation' 'execution and Attestation of Deeds' 'mortgages and Equitable Charges' 'limitation of Actions' 'interest Under Loan Agreements']

Case Brief

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Procedural Posture

Principal Judgment / Judgment Following Final Hearing

Legal Issues

  1. 1 ['Whether the Deed of Loan was validly executed as a deed under s 38(1) Conveyancing Act 1919 (NSW)' 'Whether the claim for principal and interest is statute-barred under Limitation Act 1969 (NSW)' 'Proper construction of the Deed regarding obligation to pay interest prior to principal repayment' 'Whether an equitable mortgage/charge arose under the Deed' 'Whether the Deed failed for want of authority of signatory' 'Whether money was advanced under the Deed']

Ratio Decidendi

The Deed of Loan was validly executed because s 38(1) of the Conveyancing Act 1919 (NSW) does not prohibit a person who signs for a corporate party, and is not otherwise a party, from attesting the execution of another party to the deed. Therefore, the deeds limitation period of 12 years applied. The cause of action for repayment of the principal did not accrue until 36 months after 8 February 2001. Interest accrued monthly but was not payable until the principal repayment date. The Limitation Act therefore barred recovery of only interest which accrued outside the 6 years before the claim, but not the principal. The cheque for $30,000 was delivered to the borrower. The plaintiff as...

Court Disposition

Judgment for the plaintiff against the first defendant.

Orders

  • ['Judgment entered for the plaintiff against the first defendant in the sum of $67,600.' 'Parties to provide written submissions on costs by 2 February 2018.' 'Further directions hearing listed for 16 February 2018.' 'Plaintiff may pursue the appointment of trustees for sale of the property under s 66G Conveyancing...