payment of money held to be made under an enforceable loan agreement
between plaintiff and first defendant
first defendant ordered to repay loan
Quick Take
1A payment by a debtor to a joint loan account held by the creditor and another person can constitute a confirmation of debt under s 54(2)(a)(ii) of the Limitation Act 1969 (NSW), where the payment is referable to the loan arrangement and made in recognition that the debt is outstanding and unpaid, even absent an express written acknowledgement.
2A cause of action for a restitutionary claim based on failure of consideration accrues upon payment of the money or receipt of the benefit, not when the courts recognise the right to sue, following Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581.
3Where co-ordinate liabilities exist between joint borrowers, a right of contribution may not arise if the understanding at the relevant time was that only one of them would be responsible for repayments.
Case Details
Citation[2010] NSWSC 386
CourtNSWSC
JurisdictionNew South Wales
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