Steiner v Strang

[2015] NSWCA 203

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Admissibility
3. › Admissions
4. › Circumstances in which admission made
5. › Whether evidence of surrounding circumstances admissible to assess weight of written admission
6. › Document having no juridical effect
1. Contract
2. › Formation
3. › Whether advance of money constituted gift or loan
4. › Acknowledgement signed after advance of funds
5. › Whether acknowledgement created contractual obligation or merely evidenced pre-existing obligation
1. Succession
2. › Administration of estates
3. › Debts owed by beneficiaries to estate
4. › Rule in Cherry v Boultbee
5. › Whether acknowledgement limits funds from which debt may be repaid
6. › Whether debt may be offset against pecuniary legacy as well as residuary bequest
1. Contract
2. › Construction
3. › Construction of acknowledgement of loan
4. › Whether acknowledgement discharged or limited liability
5. › Whether permissive language ('can be repaid') limits range of repayment sources

Quick Take

Where a written acknowledgement of a loan has no juridical effect (being neither a contract supported by consideration nor a deed), it operates only as an admission, and evidence of the circumstances in which it was made is admissible to assess its weight. The rule in Cherry v Boultbee entitles executors to offset a debt owed by a beneficiary against both pecuniary legacies and residuary bequests, not merely the residuary estate. Permissive language in an acknowledgement ('can be repaid by offsetting') does not limit the sources from which a debt may be repaid.