//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 43
respondent. Appeal dismissed. The appellant was ordered to pay the respondent's costs. The existing judgment sum of $593,033.41 remained unchanged because there was no cross-appeal, although the Court found a...
The Court of Appeal corrected the way the trial judgment had understood a figure in a payment schedule and independently assessed the disputed transactions. It found that three of the four disputed loans were proved, and that only one of the five disputed payments was proved as a repayment of principal. The resulting balance was higher than the existing judgment. The son's limitation argument also failed because he had not pleaded or appropriately claimed the statutory defence. The appeal was dismissed, leaving the judgment unchanged, with costs against the appellant.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
4 cited instruments linked from this judgment.
2,434 words · generated 08/10/2026
Jill Kearney brought claims against her son, Simon Kearney, for money she said she had lent him or advanced at his request. The appeal concerned the amount remaining unpaid, not the full history of their financial dealings. The parties identified four disputed loan advances and five disputed payments as requiring determination by the Court of Appeal [5]-[7].
The primary judge entered judgment for Jill for $593,033.41. A central problem was the interpretation of MFI #13, a spreadsheet prepared for Jill's submissions. It recorded sums Simon said Jill had received, distinguishing amounts Jill accepted as loan repayments from other receipts and amounts she disputed receiving. The figure of approximately $653,000 was not, as the primary judge understood it, the net balance Jill claimed after accounting for advances. It represented amounts Simon alleged were repayments but Jill disputed receiving [10]-[12], [56].
The Court of Appeal therefore undertook its own assessment under s 75A of the Supreme Court Act 1970 (NSW), an approach agreed by the parties [9], [34]. It found that three of the four disputed loans were established: #4 for $100,000, #8 for $150,000 and #12 for $200,000. Loan #7, for $270,000, was not proved [44], [47], [50], [54]-[55].
Of the disputed payments, the Court allowed only payment #83, for $150,000. It rejected the other four as unproved repayments of loan principal, applying the appellant's burden to establish payments [58]-[65]. Adding the established loans to the agreed advances yielded $1,525,000. Adding the allowed disputed payment to agreed reductions yielded repayments of $767,876.59. The Court calculated the balance as $757,123.41 [55], [65]-[66].
That figure exceeded the existing judgment. Jill accepted that, because she had not cross-appealed, the appeal should be dismissed if the Court found an amount greater than the judgment sum [8]. The Court left the judgment unchanged and dismissed the appeal [86]-[88].
A separate issue was limitation. Simon accepted he had not expressly pleaded a Limitation Act defence, but argued that Jill's pleading of promissory estoppel and confirmation, his own equitable pleas, and references in submissions put limitation in issue [75]. The Court held that those matters did not meet the statutory and procedural requirements for claiming extinction of a right.
The Court treated the disputed transactions as questions of proof. It identified the parties' respective burdens: Jill had to establish the advances, and Simon had to establish repayments [19]. The evidence was then assessed transaction by transaction rather than by relying on the misunderstood summary figure.
For loan #4, Jill produced a letter requesting the NAB to transfer $100,000 to NWDS, a company of which Simon was sole shareholder, and an acknowledgment of debt signed by Simon on 31 March 2008 [38]. Simon relied on a list Jill prepared in June 2009 that omitted the loan. The Court did not treat the omission as decisive. It reasoned that the list was not a business record from which the absence of a transaction could reliably show that the transaction did not occur. Jill had not been cross-examined about the omission, and the bank material and acknowledgment supported the advance [39]-[42].
The destination of the funds did not defeat the claim against Simon. The Court considered that Jill could recover from him if the payment to NWDS had been made at his request. It also described possible alternative characterisations: a loan to Simon and NWDS together, or a loan to NWDS guaranteed by Simon. On the evidence and those possible characterisations, it found Simon liable for loan #4 [43]-[44]. The reasoning is fact-specific and tied to the evidence of request and acknowledgment.
Loan #7 failed for a different evidentiary reason. Jill accepted that the transfer should appear in her bank statements, but no statement supporting it was tendered. Her answers in re-examination did not fill that gap. The Court therefore found the loan unproved [46]-[47]. For loan #8, bank records showed a $150,000 debit from Jill and corresponding credit to NWDS, supported by affidavit evidence. The Court also accepted that $140,000 had been repaid, as the parties agreed [48]-[50].
For loan #12, records established that $200,000 was withdrawn from Jill's account and transferred to NWDS. The Court inferred from the circumstances of loan #4 that the transfer was made following Simon's express or implied request. It did not need to decide whether Simon had made the alleged statement about a woman at the bank, or whether any such statement was serious [51]-[54].
The disputed payments turned on whether the evidence identified Jill as recipient and showed reduction of loan principal. For payments #18 and #26, NWDS records showed transfers labelled “nwds repay”, but did not identify Jill as recipient. Simon's evidence was not enough to discharge his burden without independent support [58]-[60]. Payments #62 and #69 were made to Jill's superannuation fund and labelled “nwds jk int”. The Court was not persuaded they reduced principal rather than representing interest [61]-[63]. Payment #83 was also made to the superannuation fund, but no other purpose was identified. In those circumstances, the Court inferred that it reduced Simon's indebtedness [64].
The limitation issue turned on pleading, not on a final determination of when every cause of action accrued or whether an acknowledgment extended time. The Court set out the six-year period in s 14, the confirmation provisions in s 54, and the extinction provision in s 63 [68]-[70]. Section 68A meant a party could not benefit in the proceedings from statutory extinction unless it had pleaded or otherwise appropriately claimed that extinction. UCPR r 14.14 required extinction of right or title to be specifically pleaded, and r 14.29 permitted a claim under s 68A by affidavit or notice [71]-[74].
Simon did not plead the statutory defence or make a claim by affidavit or notice [74]-[75]. Jill's pleadings concerning confirmation and promissory estoppel could indicate that her advisers were conscious of limitation risks, but that did not remove Simon's obligation to raise the defence [76]. His written and oral submissions likewise did not substitute for the required pleading [77]-[78], [81]-[83]. Finally, the Court distinguished equitable defences such as laches and acquiescence from the statutory defence: they have different characteristics and do not perform the same procedural role [79]-[80].
The judgment does not purport to announce a general change in the law. Its limitation reasoning applies statutory text and authorities to the pleadings in this case. Before the appeal, the primary judge had considered limitation despite noting that Simon had not pleaded the defence. She also considered when the claims accrued and whether loans were repayable on demand or on notice [31]-[32]. On appeal, the Court held that the pleading failure was dispositive of the statutory limitation grounds, so it did not need to resolve the accrual question or the effect of a confirmation.
The Court explained that s 14 provides a six-year limitation period for causes of action founded on contract or quasi-contract, and that s 54 can affect the calculation following confirmation [68]-[69]. It also referred to s 63, under which relevant money claims are extinguished on expiry of a limitation period, and s 68A, which requires extinction to be pleaded or appropriately claimed in the proceedings [70]-[73]. These provisions are stated in the judgment, but the Court did not decide whether the respondent's claims would have been barred if a defence had been pleaded.
On pleading, the judgment applies the distinction in Gerace v Auzhair Supplies Pty Ltd (in liquidation) between equitable defences, which are fact-specific and discretionary and apply to equitable claims, and a statutory limitation defence, which is non-discretionary and applies to legal claims, with analogy only to equitable claims [79]. It also applies Price v Spoor for the proposition that a limitation defence must be pleaded [80]. The operative consequence here was that Simon could not obtain the benefit of statutory extinction in these proceedings without the required plea or claim.
The appellate fact-finding is similarly case-specific. The judgment shows the Court reviewing evidence pursuant to s 75A where the parties agreed that course and the primary judge's conclusion was affected by a mistaken understanding of a schedule [9]-[12], [34]. It does not set out a new general test for appellate review or alter the statutory power. Its practical significance in this case lies in the Court's transaction-by-transaction findings and calculation.
At [11], the Court explains that the approximately $653,000 figure “reflected the total of amounts which Simon maintained, and Jill disputed, were repayments of loan advances.” In plain English, the figure was not the amount Jill said remained owing. It concerned disputed receipts and could not be used as a net debt calculation.
At [42], the Court says the missing entry in Exhibit 7 did not overcome the “compelling inference” from the bank records and signed acknowledgment. The practical point is that an omission from a later list was not treated as conclusive, particularly given the nature of that document and the lack of questioning about the omission.
At [43], the Court explains why payment to NWDS could still support liability against Simon: if the transfer was made at his request, Jill could bring a money claim against him for money paid for him at his request. The Court also identified alternative possible legal characterisations. It concluded on this evidence that the transfer did not, by itself, confine any claim to NWDS.
At [63], the Court says it was not persuaded that Simon had proved payments #62 and #69 reduced the loan principal. In plain English, proof that money was transferred to Jill's fund was not enough: the evidence also had to establish that it was a repayment of principal rather than interest.
At [80], the Court states: “The pleading of equitable defences does not amount to the pleading of a defence under the Limitation Act. A limitation defence must be pleaded.” This is the clearest statement of the procedural rule applied. The Court then applies it at [84]: because Simon did not plead the defence, Jill's claims were not extinguished in the proceedings.
At [86], the Court records the result of its reassessment: $757,123.41 remained owing, which was greater than the judgment. Because there was no cross-appeal, the Court dismissed Simon's appeal without increasing the judgment.
The limitation reasoning is relevant where a defendant seeks to rely on statutory expiry of a debt or money claim but has not expressly pleaded or otherwise appropriately claimed extinction in the proceeding. This case specifically rejects the idea that a claimant's own pleading of confirmation or an equitable cause of action makes the defendant's limitation defence unnecessary to plead [75]-[80].
It is also relevant where a defence pleads laches, delay or acquiescence but not statutory limitation. The Court treated those equitable pleas as distinct from the statutory defence and did not allow them to stand in its place [79]-[80]. Similarly, a mention of limitation in opening or closing submissions did not cure the absence of the required pleading [77]-[78], [81]-[83].
The evidence assessment may be relevant in disputes involving family or business advances, incomplete bank records, payments to a company controlled by the alleged borrower, or transfers whose purpose is disputed. However, the result depends on the particular documents, admissions, credibility findings and inferences in this record. The judgment does not establish that any transfer to a related company automatically makes an individual liable, or that every payment to a superannuation fund is a loan repayment. For loan #4, request and acknowledgment evidence mattered [38]-[44]. For loan #7, absence of supporting bank records was decisive [46]-[47]. For payments #18 and #26, the recipient was not established [58]-[60].
The case also illustrates a situation where an appellate court undertakes its own fact-finding after an agreed request to review disputed transactions, particularly when a material calculation below rested on a mistaken reading of a schedule [9]-[12], [34]. It does not remove the need to establish the applicable basis for appellate intervention in another case.
The supplied judgment does not cite any later court decision applying or distinguishing Kearney v Kearney. As a result, the judgment text provides no basis to describe subsequent treatment or claim that the decision has been followed, limited or questioned by later courts.
It does identify authorities it applied or discussed. Gerace was used for the distinction between equitable defences and a statutory limitation defence [79]. Price v Spoor was applied for the requirement that a limitation defence be pleaded [80]. In re A Debtor and Symonds v Vass were referred to in considering money paid at a defendant's request [43]. Boensch v Pascoe was cited in explaining why the Court would address further submissions notwithstanding its view that certain grounds were dispositive [67]. Those are the authorities' roles within this judgment; they do not establish how later courts have treated Kearney itself.
The Court expressly left ground 3a undecided. It did not determine whether the primary judge erred by implying a term that the loans were repayable on notice, or whether the process raised a procedural fairness issue. It stated that the issue was hypothetical after deciding the limitation pleading grounds and that it was unnecessary and undesirable to address it [85]. Accordingly, the judgment should not be read as resolving whether these particular loans were repayable on demand, on notice or on another basis.
The Court also did not decide whether Simon's 2013 email confirmed the debts for s 54 purposes. Jill's notice of contention alleged confirmation, but the Court found it unnecessary to address that contention because the limitation defence had not been pleaded [15], [87]. Nor did it decide the limitation result that would have followed had Simon properly raised the defence. Its conclusion was procedural: the defence was not available in these proceedings in the absence of the required plea or claim [84], [86].
The evidence underlying the individual advances and payments remains specific to this dispute. The Court did not determine the status of every transaction in the parties' financial relationship, nor did it calculate every possible interest component. It confined the appeal analysis to the identified disputed advances and payments [3], [5]. It also did not explain whether, or in what circumstances, a later list's omission of an entry might be persuasive where the document had a different evidentiary character or had been tested in cross-examination [39]-[42].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kearney v Kearney [2026] NSWCA 43
Hearing dates: 18 March 2026
Decision date: 30 March 2026
Before: Ward P at [1]
Adamson JA at [2]
McHugh JA at [89]
Decision: (1) Dismiss the appeal.
(2) Order the appellant to pay the respondent’s costs.
Catchwords: LOANS — account — appeal — quantum of amount owing by son to mother for unpaid loans — erroneous apprehension about the significance of a figure contained in a schedule of payments — requirement to review evidence of the loans and make findings of fact pursuant to power in s 75A of the Supreme Court Act 1970 (NSW)
LIMITATION OF ACTIONS — debt — requirement that defence under the Limitation Act 1969 (NSW) be pleaded
Legislation Cited: Limitation Act 1969 (NSW), ss 14, 54, 63, 68A
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.29
Cases Cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Gerace v Auzhair Supplies Pty Ltd (in liquidation) (2014) 87 NSWLR 435; [2014] NSWCA 181
In re A Debtor [1937] Ch 156
Price v Spoor (2021) 270 CLR 450; [2021] HCA 20
Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689
Category: Principal judgment
Parties: Simon Peter Kearney (Appellant)
Jill Kearney (Respondent)
Representation: Counsel:
J E Mack / L Hamilton (Appellant)
M Maconachie (Respondent)
Solicitors:
Harris Freidman Lawyers (Appellant)
Benjafield & Associates (Respondent)
File Number(s): 2025/326694
[This headnote is not to be read as part of the judgment]
The appellant appealed against a judgment entered against him in the Supreme Court in favour of his mother, the respondent. As the judgment sum was the result of the primary judge’s misapprehension concerning the significance of a figure propounded in submissions, it was necessary for the Court, pursuant to s 75A of the Supreme Court Act 1970 (NSW), to review the evidence of four disputed loan advances and five disputed payments and determine the net balance.
The appellant also submitted that it was not necessary for him to plead a defence under the Limitation Act 1969 (NSW) as the respondent had pleaded promissory estoppel and confirmation in her statement of claim and, further, that the allegation in his defence that “[the respondent’s] laches, delay and acquiescence operated to prevent the complaint being advanced” was sufficient to amount to a pleading of a defence under the Limitation Act.
The Court (Adamson JA, Ward P and McHugh JA agreeing) held dismissing the appeal:
(1) The Court, having conducted its own assessment of the evidence of disputed loans and payments, found that the respondent had established that the appellant remains indebted to her for a sum greater than the judgment sum: [10]-[11], [86].
(2) The pleading of equitable defences does not amount to the pleading of a defence under the Limitation Act. A limitation defence must be expressly pleaded: [79]-[80], [72]-[73].
Price v Spoor (2021) 270 CLR 450; [2021] HCA 20; Gerace v Auzhair Supplies Pty Ltd (in liquidation) (2014) 87 NSWLR 435; [2014] NSWCA 181 applied.
WARD P: I agree with Adamson JA.
ADAMSON JA: The appellant, Simon Kearney, appeals against a judgment entered against him on 5 August 2025 by Schmidt AJ (the primary judge) in favour of his mother, the respondent, Jill Kearney, in the sum of $593,033.41 (the judgment sum). The evidence established that Jill had advanced money to Simon over the course of several years, some of which was repaid. The issues in the proceedings in the Supreme Court (the Court below) were largely confined to the amount of the advances and the amount of the repayments.
As the appeal largely turns on the quantification of the net balance of any amount outstanding, it is not necessary to canvass the whole financial relationship between the parties or the other matters which arose in the proceedings in the Court below.
To assist the reader, the parties will be referred to by their first names.
The matters which remain in dispute between the parties in this Court are confined to four disputed loan advances (#4, #7, #8 and #12) and five disputed payments (#18, #26, #62, #69 and #83). The numbers allocated to these transactions were those used by the parties in the Court below and in this Court. Although the numbers were not adopted by the primary judge in her findings, they were used in a table contained in her Honour’s reasons (J[79]).
The agreed and disputed figures are contained in the following table.
| Advances made by Jill to Simon or at his request | | Agreed total advanced for loans #2, #6, #9, #10 | $1,075,000 | | Disputed loan | Date of advance | Amount | | | #4 | 12 March 2008 | $100,000 | | | #7 | 24 June 2008 | $270,000 | | | #8 | 1 September 2008 | $150,000 | | | #12 | 8 October 2010 | $200,000 | | | Total of disputed loans #4, #7, #8 and #12 | $720,000 | | Maximum total of loan advances | $1,795,000 | | P****ayments made by Simon in reduction of advances | | Agreed payments | $418,680 | | | Further agreed payment | $140,000 | | | Agreed deduction for subtenant | $59,196.59 | | | Total agreed reductions to amount of advances | $617,876.59 | | Disputed payment | Date of payment | Amount | | | #18 | 31 July 2008 | $18,209 | | | #26 | 30 September 2008 | $16,089.89 | | | #62 | 16 July 2009 | $8,000 | | | #69 | 11 August 2009 | $18,700 | | | #83 | 4 December 2009 | $150,000 | | | Total disputed payments | $210,998.89 | | Maximum total reductions to advances made | $828,875.48 |
| | Advances | Payments | Net outstanding | | Simon’s best case | $1,075,000 | $828,875.48 | $246,124.52 | | Jill’s best case | $1,795,000 | $617,876.59 | $1,177,123.41 |
As there is no cross-appeal, and as Jill accepted at the hearing of the appeal, any amount found to be outstanding to Jill which is greater than the judgment sum of $593,033.41 would result in the appeal being dismissed.
The primary judge’s quantification of the amount which Simon owed to Jill did not proceed along the lines set out above (a determination of disputed loan advances and disputed payments). However, the parties agreed that it was the approach which this Court ought take.
The primary judge’s approach arose from an unfortunate misapprehension about the significance of the figure of $653,171.68 in a schedule of payments prepared for the purpose of Jill’s submissions which was marked MFI #13 and which is the subject of ground 2. The primary judge regarded this figure as the net figure claimed by Jill (from which the parties ultimately agreed, when directed to bring in short minutes to reflect her Honour’s reasons, the sum of $59,196.59 needed to be deducted to give the judgment sum of $593,033.41). It was common ground that the primary judge’s apprehension that this figure was a net figure was erroneous.
MFI #13 comprised a spreadsheet which relevantly recorded every amount that Simon alleged had been received by Jill ($2,053,517 in total). It identified which receipts she accepted as amounting to repayments of loan advances which she had made to him (which totalled $418,680); and those amounts which she accepted that she received but did not accept were repayments of loan advances, which were identified as interest payments, rent payments or other payments (which totalled in the order of $1,400,345). There remained many amounts (which totalled in the order of $653,000, being the difference between $2,053,517 and $1,400,345) which Simon alleged he had paid Jill but which Jill did not accept she had received at all. Thus the figure in the order of $653,000 reflected the total of amounts which Simon maintained, and Jill disputed, were repayments of loan advances. It was ultimately common ground that MFI #13 made no reference to the amount of the advances and that its effect was not that the net amount owing on Jill’s case was in the order of $653,000.
This misapprehension may explain why the primary judge made few specific findings about the loan advances or the payments (as alleged in ground 1).
1. The primary judge erred in finding in Kearney v Tamworth Poly Tanks Pty Ltd [2025] NSWSC 729 (PJ) (including at PJ [27(3)]-[27(4)], [28(13)]-[28(14)], [28(22)], [236]-[240], [245] and/or [258]) that [Simon] was indebted to [Jill] pursuant to loan agreements without making a finding as to the existence of the particular loan agreements in circumstances where the evidence did not establish that the particular loan agreements existed.
2. The primary judge erred in finding that [Simon] had not repaid $653,000 (PJ [27(4)]) of the amounts advanced to him by [Jill].
3. The primary judge:
a. erred at PJ [178]-[182] by implying a term that any loans were repayable on notice in circumstances including where:
i. [Jill] alleged that the loans were repayable on demand and that there had been a confirmation in 2013 of loans for the purposes of s 54 of the Limitation Act 1969 (NSW);
ii. [Simon’s] evidence was rejected; and
iii. there was insufficient evidence to establish the loans were repayable on notice;
b. erred at PJ [171] and [173] by finding that [Simon] was required to and failed to plead a defence under the Limitation Act 1969 (NSW); and
c. erred by not finding that [Jill’s] loan claims were barred by the Limitation Act 1969 (NSW).
The further amended statement of claim (FASC) alleged, in paragraphs 34-59, that certain loans had been made by Jill to Simon and that each was repayable on demand. In paragraph 66 of the FASC, Jill alleged that an email sent on 13 November 2013 from Simon to her was a confirmation of his indebtedness to her for the purposes of s 54 of the Limitation Act. In paragraph 91 of the FASC, Jill alleged that Simon was indebted to her in the sum of $1,795,000, being the total of the money advanced.
In his defence to the FASC, Simon substantially denied the loans alleged. In the alternative, he alleged that they had been repaid. He also alleged, in respect of each loan, that Jill’s “laches, delay and acquiescence operate to prevent the complaint being advanced”. It was accepted on behalf of Simon that no express defence that the money claims were statute-barred under the Limitation Act had been pleaded in his defence.
It was common ground and well established by authority that Jill bore the onus of proving the advances and Simon bore the onus of proving the repayments.
The total amount of the loans [Jill] made to [Simon] …, what has been repaid and what interest remains unpaid …
The primary judge set out, at J[79], a table of the claimed loans (identified by the number allocated to them by the parties), including the quantum and the date of the advance.
The primary judge accepted that the bank records were “incomplete”: J[19] and [30](6).
In J[4], the primary judge noted that Jill’s total claim against Simon was $1,795,000. Her Honour said, in a summary of her ultimate findings at J[27], that Simon must be ordered to pay Jill $653,000 (this was a reference to MFI #13 and reflected the primary judge’s misapprehension of that document). The primary judge said at J[28](22) that “[Jill’s] final analysis of the documentary evidence of the money advanced to [Simon] … and what she has been paid and was still owed should be accepted.”
At J[82], the primary judge said:
What [Jill] finally pursued was reduced to some $653,000.
As it transpired, [Jill’s] decision, finally, to press for money orders of only $653,000 having considered [Simon’s] analysis of the records was rational, neither party having called evidence from the accountants who had assisted them over the years, nor having engaged any expert to analyse what the available records established.
The result was that [Jill] accepted that some $1,400,346.60 had been paid to her, with rent paid amounting to $708,215.60 … That left $653,171.68, payment of which [Jill] pursued.
251 [Jill] had sworn a number of affidavits in which she explained loans she had made, in the main between 2007 and 2010, as well as payments she had received. On her evidence in 2007 [Jill] had also guaranteed one of [Simon’s] borrowings with a $227,500 deposit, as well as loaning him $500,000 for working capital, $300,000 of which was soon repaid, before she advanced him another $100,000 in 2008 [loan #4]. There are written acknowledgments of some of these dealings.
252 … In June [2008] she advanced [Simon] $600,000 to acquire a company and in September a further $150,000 [loan #8]. In 2009 she advanced him $75,000 [loan #10] at a time when she understood he wanted to buy a tractor and spray rig. He repaid $140,000 in October, but she claimed he withdrew $200,000 from her account in October, without her knowledge or consent [loan #12].
253 [Jill] made further advances to [Simon] in 2009 and 2010, including the disputed $200,000 which she provided in December 2010 so that he could purchase Salona. She believed he had used those funds for other purposes. The cheque was paid into an NWDS [a company controlled by Simon] account.
254 Salona was the property [Jill] had long admired and hoped herself to purchase. It was described to have been a mansion, but on [Jill’s] evidence in cross-examination it was a large 5-bedroom house which required considerable upkeep when she moved in after she left Longacres, all of which she could not afford.
255 [Simon] claimed that this $200,000 was a gift. It was the affidavit evidence of his wife that the $200,000 had been given to her and [Simon], but that “I understood this amount to be compensation to Simon and not a loan”. That did not accord with his evidence. In cross-examination he said he had received the $200,000 cheque in a Christmas card. [Jill] did not accept this.
[Emphasis added to identify findings regarding loans by reference to the numbering system used by the parties.]
… I am satisfied that [Simon’s] evidence cannot be accepted as accurate, or preferred over that of his mother, without objective, independent support.
239 Having preferred [Jill’s] evidence in the case of conflict over that of [Simon] for the reasons I have explained, I have also concluded that she has established the case she finally pressed, other than in respect of payments which subtenants made to her.
240 That is because the rejection of [Jill’s] case depended on the acceptance of [Simon’s] evidence about the disputed loans and withdrawal, unsupported as it was by relevant contemporaneous documents and implausible and contradictory as it was in the ways I have explained. I am unable to prefer his evidence about what remained in issue, including in respect of interest and the withdrawal, with the result that it must be accepted that [Jill] has met the onus which fell upon her to establish a basis for the claim she finally pressed.
(Emphasis added.)
The primary judge addressed the time at which Jill’s causes of action arose against Simon, although her Honour noted that Simon had not pleaded a Limitation Act defence: J[171]. Her Honour referred to the submission made on behalf of Simon that it was not necessary that it be pleaded in light of Jill’s claims in promissory estoppel and allegations of confirmation of the debts pursuant to s 54 of the Limitation Act: J[172]-[175]. Her Honour found that, if Simon was to advance a limitation defence, he ought to have pleaded it: J[173].
Further, her Honour considered, in the context of an unpleaded time bar, when Jill’s cause of action arose. Although Jill pleaded that the loans were repayable on demand (which would have resulted in time running from the date of each advance), the primary judge rejected this allegation and, instead, found that business efficacy required a term to be implied that they were repayable on the giving of notice: J[179]. Her Honour was not satisfied that notice had been given until after Simon had served a cross-claim in 2024: J[181]. Accordingly, the primary judge was not satisfied that Simon had established that Jill’s claims were time-barred, even leaving aside the absence of a plea in the defence to the Limitation Act: J[182].
The primary judge’s reframing of Jill’s case is the subject of ground 3a.
Although the form of ground 1 challenges the primary judge’s reasons by alleging that her Honour failed to make certain findings, Simon does not seek a re-trial. It was common ground that this Court ought review the evidence in the exercise of its powers pursuant to s 75A of the Supreme Court Act 1970 (NSW) to determine whether the disputed loans were made.
The loan advances in dispute for the purposes of ground 1 are as follows:
| # | Date | Amount | | 4 | 12 March 2008 | $100,000 | | 7 | 24 June 2008 | $270,000 | | 8 | 1 September 2008 | $150,000 | | 12 | 8 October 2010 | $200,000 |
[Jill] had sworn a number of affidavits in which she explained loans she had made, in the main between 2007 and 2010, as well as payments she had received. On her evidence in 2007 [Jill] had also guaranteed one of [Simon’s] borrowings with a $227,500 deposit, as well as loaning him $500,000 for working capital, $300,000 of which was soon repaid, before she advanced him another $100,000 in 2008. There are written acknowledgments of some of these dealings.
(Emphasis added to indicate the portion relating to loan #4.)
Leaving aside the pleading point as to whether Jill’s allegations were taken to have been admitted, I propose to address the evidence of the advance, as identified by the parties in their written submissions.
In support of loan #4, Jill relied on:
a letter dated 12 March 2008 which she had written to Jane Bower at the National Australia Bank (NAB) requesting her to transfer $100,000 to the account of North West Direct Sales Pty Ltd (NWDS), a company of which Simon was the sole shareholder; and
an acknowledgment of debt signed by Simon on 31 March 2008 in respect of three advances, including in an amount of $100,000 made on an unknown date (but inferentially after the previous advances which had been made on 11 and 18 December 2007 respectively), which recorded that interest on the sum of $100,000 was calculated from 12 March 2008.
Counsel for Simon submitted in the Court below that the evidence was insufficient to prove loan #4 and relied on Exhibit 7, a handwritten document dated 30 June 2009 prepared on a single occasion by Jill which purported to list all of the advances she had made to Simon prior to that date and which did not contain a reference to loan #4.
The document was tendered in the following circumstances. While Jill was giving evidence, Simon’s counsel made a call for any document in which Jill recorded the loans she had advanced. The call was answered the following day when Jill was in re-examination. Following its production, Simon’s counsel was granted leave to cross-examine Jill further. Jill was not cross-examined about the omission of loan #4 from the document.
Simon submitted that, as the list did not refer to loan #4, it ought be concluded that it was not an advance that she made to him. Further, and in the alternative, he submitted that the loan was from Jill to NWDS rather than to Simon personally; that the loan had been repaid (raised in ground 2); or that it was statute-barred as the loan was repayable on demand (raised in ground 3).
I do not regard Exhibit 7 as gainsaying the compelling inference which arises from the bank records and Simon’s acknowledgment of debt that loan #4 was advanced in the amount and on the date alleged. Exhibit 7 was not a document, such as a business record, from which the inference can be drawn from the absence of a reference to an event or transaction that it did not occur: cf. s 69(4) of the Evidence Act 1995 (NSW). It is understandable that Jill might have temporarily forgotten that she had advanced $100,000 to Simon on 12 March 2008 when she turned her mind to making a list of advances 15 months later. This matter was not explored by Simon’s counsel in his cross-examination of Jill following production of the document which became Exhibit 7.
I reject the alternative argument put on behalf of Simon that, if the funds were paid to NWDS, Jill could only recover the advance from NWDS. If, as can reasonably be inferred, Jill’s transfer to NWDS was made at Simon’s request, Jill is entitled to recover the amount directly from Simon on the basis of the money claim for money paid by the plaintiff for the defendant at the defendant’s request: see the discussion in [1937] Ch 156 at [163]-[164] (Green LJ), cited with approval by Ipp JA (who dissented on a different point) at [172] in [2009] NSWCA 139; (2009) 257 ALR 689. Alternatively, the loan could be seen as one made to both Simon and NWDS or as a loan to NWDS which Simon guaranteed. On any of these permutations, Simon is liable to Jill for the amount transferred to NWDS.
Jill alleged in paragraph 42(b) of the FASC that on 24 June 2008 she advanced $270,000 to Simon for the purchase of shares in AIRR Holdings Limited. The primary judge’s reasons did not include any specific findings relating to this alleged loan.
Jill accepted that, if $270,000 had been advanced to Simon, the transfer would have been recorded in her bank statements and that if there was no bank record, then she would accept that she did not advance this amount to Simon. No bank statement was tendered to support the advance. Although Jill was also asked about this advance in re-examination, her answers did not assist in its proof.
In these circumstances, loan #7 has not been proved.
Jill alleged in paragraphs 44-46 of the FASC that she had advanced the sum of $150,000 to Simon on or about 1 September 2008, that it was repayable on demand and that he had repaid $140,000 of this advance on 3 October 2010. In paragraphs 44-46 of his defence, Simon denied the loan but admitted that he had paid $140,000 to Jill on 3 October 2010.
In J[252] the primary judge summarised Jill’s evidence that she had advanced $150,000 to Simon in September 2008. As referred to above, the primary judge generally accepted Jill’s evidence.
Jill’s bank statement recorded a debit of $150,000 on 1 September 2008. NWDS’s account recorded a credit entry of $150,000 on the same date. It was common ground that an amount of $140,000 was paid to Jill on 3 October 2008, as recorded in the bank statement of NWDS. The business records, together with Jill’s affidavit evidence, establish that loan #8 was made, and that $140,000 of the advance was repaid.
In paragraph 33 of her FASC, Jill alleged that Simon had withdrawn $200,000 from a term deposit account on 8 October 2010 without her knowledge or consent. Simon denied this allegation.
Jill deposed that, when she confronted Simon about the withdrawal, he said that a woman in the bank, who was in love with him, had facilitated the withdrawal. Jill confirmed that evidence in cross-examination. Simon denied doing so. It was not suggested that this alleged loan was a gift.
The primary judge recorded at J[252] that Jill “claimed [that Simon] withdrew $200,000 from her account in October, without her knowledge or consent.” Her Honour did not otherwise make a specific finding with respect to loan #12. Although her Honour generally accepted Jill’s evidence, it cannot necessarily be inferred that the primary judge accepted Jill’s evidence of Simon’s alleged admission that a woman at the bank had facilitated the withdrawal. It is also possible that, if Simon actually said these words, they were uttered facetiously or sarcastically, and were not intended to be an accurate account of how the money came to be transferred.
The business records established that $200,000 was withdrawn from Jill’s bank account and transferred to the bank account of NWDS. These business records are sufficient to prove that $200,000 was received by NWDS from Jill. The circumstances of loan #4 (set out above) permit the inference to be drawn that the money was transferred to that bank account following the express or implied request of Simon. This evidence establishes loan #12. In these circumstances, it is not necessary to express a view about whether the alleged admission was made by Simon or whether he was serious when he uttered the words about the “woman in the bank”.
| Advances made by Jill to Simon or at his request | | Agreed total advanced for loans #2, #6, #9, #10 | $1,075,000 | | Disputed loan | Date of advance | Amount established | | | #4 | 12 March 2008 | $100,000 | | | #7 | 24 June 2008 | Nil | | | #8 | 1 September 2008 | $150,000 | | | #12 | 8 October 2010 | $200,000 | | | Total additional loans established | $450,000 | | Total of advances | $1,525,000 |
As referred to above, it was ultimately common ground that MFI #13 made no reference to the amount of the advances and that the effect of MFI #13 was not that the net amount owing on Jill’s case was in the order of $653,000. Rather, this figure in MFI #13 represented the total amount of the receipts in Jill’s accounts which Jill disputed were repayments of the loans she had made to Simon (she accepted that $418,680 had been repaid). Accordingly, ground 2 in terms has been made out. The primary judge’s misapprehension as to the significance of this figure may explain why her Honour did not make findings about the disputed repayments.
For the reasons given above, it is necessary for this Court to perform a similar exercise of fact-finding with respect to disputed payments as was performed above in respect of the disputed advances. The disputed payments were:
| Disputed payment | Date of payment | Amount | | #18 | 31 July 2008 | $18,209 | | #26 | 30 September 2008 | $16,089.89 | | #62 | 16 July 2009 | $8,000 | | #69 | 11 August 2009 | $18,700 | | #83 | 4 December 2009 | $150,000 |
NWDS’s bank statements record that on 31 July 2008 $18,209 was withdrawn from its account by internet transfer. The description beside this entry was “nwds repay”. Simon gave evidence that this payment was made to Jill. This amount was not shown as having been received by Jill in any of the bank statements tendered. A subpoena was issued to the NAB at the request of Simon which sought production of all of Jill’s bank statements from 1 January 2000. However, the NAB’s responses indicated that the production was incomplete. As referred to above, the primary judge accepted that not all bank statements were in evidence.
Simon bore the onus of proving that payment of $18,209 was made to Jill. The evidence does not make it more probable than not that the transfer by NWDS of that amount on 31 July 2008 was made to Jill, as opposed to another unidentified payee. As the primary judge did not accept Simon’s evidence “as accurate, or preferred over that of his mother, without objective, independent support” (J[136]), this cannot assist him in the absence of a business record that established to whom the payment was made. Accordingly, Simon has failed to discharge his onus in respect of this alleged payment.
Jill accepted that NWDS had made a payment of $8,000 to the bank account for her superannuation fund on 16 July 2008. However, she submitted that the amount ought properly be characterised as an interest payment rather than a repayment of principal. She relied on the description of the payment as “nwds jk int” on the internet transfer for the bank statement in support of the inference that the payment was for interest. Simon has accepted in respect of other payments that such a description is sufficient to give rise to the inference that the payment was for interest rather than in reduction of a principal debt. However, he relied on the circumstance that the payment was made to Jill’s superannuation fund to distinguish disputed payment #62 from other payments.
Disputed payment #69 is similar. The description “nwds jk int” also appears on NWDS’s bank statement beside the payment of $18,700 for the internet transfer to Jill’s superannuation fund.
I am not persuaded that Simon has discharged his onus of proving that either of these disputed payments was a payment in reduction of the loan advance. Accordingly, neither should be deducted from the net amount due.
| P****ayments made in reduction of Jill’s loans to Simon | | Agreed payments | $617,876.59 | | Disputed payments | Date of advance | Amount established | | | #18 | 31 July 2008 | Nil | | | #26 | 30 September 2008 | Nil | | | #62 | 16 July 2009 | Nil | | | #69 | 11 August 2009 | Nil | | | #83 | 4 December 2009 | $150,000 | | | Additional amount of payments established | $150,000 | | Total payments | $767,876.59 |
Section 14(1) of the Limitation Act provides for a limitation period of six years from the date on which the cause of action first accrues to the plaintiff for causes of action founded on contract or quasi-contract.
Section 54 of the Limitation Act provides that the limitation period may be extended by a confirmation. It relevantly provides:
54 Confirmation
(1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.
(2) For the purposes of this section—
(a) a person confirms a cause of action if, but only if, the person—
(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or
(ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made,
(b) a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money, and
….
(4) An acknowledgment for the purposes of this section must be in writing and signed by the maker.
…
Section 63 of the Limitation Act provides, in effect, that a cause of action to recover debt, damages or other money, is extinguished on the expiration of a limitation period.
Section 68A provides:
68A Extinction of right or title must be alleged in proceedings
(1) Where in proceedings before a judicial tribunal a question arises as to extinction under this Division of a right or title, a party to the proceedings shall not have the benefit in those proceedings of any such extinction of that right or title unless, as part of the proceedings, the party has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal that the right or title has been so extinguished.
(2) In subsection (1), a reference to proceedings before a judicial tribunal is a reference to proceedings before a court or person authorised by law or by agreement to bind the parties to the proceedings by a decision on a question arising in the proceedings as to whether or not a right or title has been extinguished under this Division.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 14.14 provides that the matters which must be specifically pleaded include “extinction of right or title”.
UCPR, r 14.29 provides:
For the purposes of section 68A of the Limitation Act 1969, a claim by the defendant that a right or title has been extinguished under Division 1 of Part 4 of that Act may be made by affidavit or by notice.
(Emphasis added.)
Simon’s counsel did not suggest that Simon had made a claim “by affidavit or notice” that Jill’s right or title to the cause of action in debt or money had and received had been extinguished.
Simon’s counsel accepted that Simon had not pleaded the Limitation Act defence in his defence to the FASC. However, he submitted, first, that Jill can be taken to have accepted that the limitation period was an issue in the proceedings since she framed her claim on the basis of promissory estoppel and also pleaded confirmation of the debt within the meaning of s 54 of the Limitation Act. Second, he submitted that the pleading of the equitable defence of “laches, delay and acquiescence” was sufficient to raise the defence. Third, he relied on his references to the Limitation Act in both opening and closing submissions in the Court below.
That Jill framed her claim in promissory estoppel and pleaded confirmation of the debt by email dated 13 November 2013 can be construed as an indication that those advising her were aware of the risk that, unless Jill’s claims could be framed as equitable claims or Simon’s confirmation of his debt established under s 54 of the Limitation Act, they would be time-barred under the Limitation Act if Simon chose to plead it in his defence. However, the expectation by Jill’s legal advisers that Simon would plead a defence under the Limitation Act did not obviate the need for him to allege it, as required by s 68A of the Limitation Act and UCPR, r 14.14(3).
In paragraph 25 of Simon’s opening written submissions dated 31 January 2025 in the Court below, his counsel said, of present relevance:
It seems to be acknowledged that the Limitation Act 1969 (NSW) would bar the claim but for the purported effect of what is pleaded as “Confirmation Email” (at FASOC [65.c] and [66]). This does not assist Jill greatly because even if this was a confirmation for the purposes of s 54 of the Limitation Act it would mean that the time for bringing any loan repayable on demand would have expired in 2019. The sequence of allegations at [65], [66] (confirmation), [68] (Longacres Agreement), [70.d] (Second Longacres Representation) and [79] (breach of Longacres Representation and Second Longacres Representation) would appear to be an attempt to get around the Limitation Act difficulties – although this is not clear.
As referred to above, Simon pleaded that each of the loans was unenforceable by reason of “laches, delay and acquiescence” and that these matters prevented “the complaint [of non-payment] being advanced.” There is a fundamental distinction between equitable defences, such as laches and acquiescence, which are fact-specific and discretionary and apply only to equitable claims, and a defence under the Limitation Act, which is non-discretionary and applies to legal claims and only by analogy to equitable claims: Gerace v Auzhair Supplies Pty Ltd (in liquidation) (2014) 87 NSWLR 435; [2014] NSWCA 181 at [51] (Meagher JA, Beazley P agreeing).
The pleading of equitable defences does not amount to the pleading of a defence under the Limitation Act. A limitation defence must be pleaded: Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 at [9]-[10] (Kiefel CJ and Edelman J), [40] (Gageler and Gordon JJ) and [78] (Steward J). The extinguishment of Jill’s cause of action as a result of her claim being brought outside the limitation period for debts and money claims of six years depended on the limitation defence being pleaded.
Ultimately, Jill has failed to prove her “money case”. The claim is beset by Limitation Act 1969 (NSW) and evidential issues.
In response to that [the promissory estoppel case] we plead quite clearly, in our defence … that [Jill’s] laches, delay and acquiescence operate to prevent the complaint being advanced. That is repeated throughout our defence. That is, we're pleading laches, delay and acquiescence which seeks to meet what we try to interpret as a promissory estoppel type case raised by my friend, and that's the equitable doctrine which prevents a case being advance in equity if it's too late. So, that's just how it unfolded, your Honour. We don't mention the words Limitation Act in our defence, but it's open on my friend's case that those problems exist.
Jill’s action against Simon for monies advanced to him or at his request is not statute-barred as he did not plead a defence under the Limitation Act. Having conducted the exercise of fact-finding required by s 75A of the Supreme Court Act, I am satisfied that Jill has established that Simon remains indebted to her in the sum of $757,123.41, which is greater than the amount of the judgment entered in her favour against him. As there is no cross-appeal, there ought be no alteration in the judgment and the appeal ought be dismissed.
It is, accordingly, unnecessary to address the notice of contention.
For the reasons given above, I propose the following orders:
Dismiss the appeal.
Order the appellant to pay the respondent’s costs.
McHUGH JA: I agree with Adamson JA.
**********
Kearney
Kearney [2026] NSWCA 43
(2019) 268 CLR 593
(2014) 87 NSWLR 435
(2021) 270 CLR 450
(2009) 257 ALR 689
Appeal dismissed. The appellant was ordered to pay the respondent's costs. The existing judgment sum of $593,033.41 remained unchanged because there was no cross-appeal, although the Court found a net debt of $757,123.41.
For these reasons, loan #4 has been proved.