Binetter v Binetter

[2022] NSWCA 169

NSW Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Suspension of limitation period
3. › Disability of plaintiff
4. › Mental impairment
5. › Whether impairment rendered lender incapable of or substantially impeded in managing affairs in relation to initiating proceedings to recover loan
6. › Whether enduring powers of attorney and enduring guardianship prevent finding of disability
7. › Limitation Act 1969 (NSW), ss 11, 52
1. Evidence
2. › Documentary evidence
3. › Business records
4. › Medical reports of treating health professionals
5. › Admissibility
6. › Whether other party can require party tendering record to call expert for cross-examination
7. › Uniform Civil Procedure Rules 2005 (NSW), r 31.29
8. › Evidence Act 1995 (NSW), s 69
1. Evidence
2. › Failure to call witness
3. › Jones v Dunkel inference
4. › Whether solicitor-client privilege justified absence of solicitor who took instructions

Quick Take

To rely on disability to suspend a limitation period under the Limitation Act 1969 (NSW), expert evidence must specifically address the plaintiff's capacity to give instructions to commence the particular proceedings, not merely their general cognitive impairment or ability to manage complex legal issues.