A plaintiff aged pensioner claimed she had been induced to loan AUD 100,000 for a term of three years to a representative of a property marketing agency for investment purposes. That sum represented a substantial part of the plaintiff’s life savings. The money was not repaid and no asset of value was obtained by the plaintiff. The plaintiff waited until the defendant’s criminal trial had concluded before commencing proceedings. The claim was therefore commenced more than six years after the loan was advanced. The plaintiff’s primary claim was for breach of contract, arguing that the cause of action did not accrue until the repayment date fell due, such that the claim was within time. The plaintiff’s secondary claim was that the loan money was obtained by theft and was held by the defendant on constructive trust, with the result that the plaintiff was entitled to equitable compensation. A limitation defence was resisted on the basis that the loan to the defendant was procured by fraud. The plaintiff also sought damages for the tort of deceit, which was met by a limitation defence, raising the question of when the plaintiff had the requisite state of mind for the cause of action to run.
The plaintiff succeeded on all issues except for the limitation date defence in respect of the deceit claim. Matthew Jones appeared pro bono for the plaintiff on a direct access brief.
The judgment is published here.