When can a solicitor bind a client to a contract? – Universal Music v Pavlovic [2015] NSWCA 313

24 February, 2016

The Limitations Act 1969 (NSW) (Limitations Act) establishes time limits within which plaintiffs must commence civil proceedings, including for the recovery of a debt. A failure to bring a claim within the relevant time period results in the claim lapsing, and the creditor losing its rights to enforce its debt. Accordingly, it is critical that creditors understand how the law restricts their ability to collect debts and any exceptions that they may rely upon as the limitation date approaches.

The limitation period for recovering debts

In NSW, there is a general limitation period of six years to recover debts arising from contract. This means that a creditor has six years from the time that the cause of action accrues to commence civil proceedings before its rights are extinguished. If, however, the agreement has been made by way of a deed, the limitation period is 12 years.

When does the cause of action accrue?

Generally, the terms of the contract governing the debt dictate when the debt becomes due. The debtor’s failure to pay the debt by the due date constitutes a breach of the contract and gives rise to a cause of action to recover the debt. If the debtor fails to pay off multiple debts, each failure will constitute a separate breach with its own limitation period.

For example, if a lease provides for monthly payments of rent, the tenant’s failure to pay rent over a six-month period would give rise to six distinct breaches, each of which is capable of constituting its own cause of action with its own countdown timer (in this case, six years). Similarly, each failure to pay interest under a loan will constitute a separate breach of the loan agreement with its own limitation period.

The principle that the terms of the contract determine the date upon which a cause of action accrues also applies to debts for services performed. For example, a contract may stipulate that the occurrence of specified milestones creates an entitlement to progress payments before all work or services under the contract have been completed. Alternatively, the contract may provide that payment for a service only becomes payable one month from the completion of all work. The parties to the contract have absolute discretion to determine when debts become due and payable before entering into the contract. It is when the debtor fails to make the required payment by the agreed payment date, thereby breaching the contract, the cause of action accrues.

In the absence of a term in the contract prescribing when payment becomes due, the limitation period begins to run from the earliest time at which the debt could have been recovered. Typically, this means that the cause of action will accrue once a service has been provided or work performed. For example, consider the scenario of a lawyer who has issued their client with an invoice one month after the completion of the lawyer’s work and is now seeking to recover the unpaid fees. In this case, the cause of action is taken to have accrued not when the bill was issued, but when the work was actually completed. Similarly, if a builder demands payment for work performed, the cause of action begins to accrue from the time the work was completed, not when the demands were made. This distinction becomes particularly relevant in circumstances where a bill is not issued until several months after a service has been performed or work completed.

Accumulating debts

The situation becomes more complicated when the contract governs multiple discrete promises which result in accumulating debts, incurred on a continuous basis over a long period of time. The accounts arising from such contracts can be characterised as running accounts.

A running account is effectively an active account between creditors and debtors who have an ongoing relationship. The account runs from day to day and anticipates that further debts will be incurred. Rather than a series of independent debts (where an account is closed once the debt has been repaid), payments to a running account are credited against the total balance owing in the account as the debtor works to bring the account into credit. In other words, payments made by the debtor are not usually apportioned among the various debts constituting the balance but are instead made generally on account of the entire balance.

Even though the outstanding amount is viewed as one fluctuating balance, the Limitations Act treats each debt incurred as separate and distinct for limitation period purposes. Accordingly, running account debts incurred more than six years before the commencement of proceedings cannot be recovered.

Extending the limitation period

The six-year time limit can be extended in a number of circumstances.

The most common example is when the debtor confirms the debt before the expiration of the limitation period. To constitute a confirmation for the purposes of the Limitations Act, a person must either:

acknowledge that the creditor has a right to the debt; or
make a payment to the creditor in respect of the debt owed.

An acknowledgement demonstrates that the debtor recognises they have a debt outstanding. It must be received by the creditor themselves, or a person through whom the creditor claims, in writing and signed by the debtor. However, so long as these formal requirements are met, the acknowledgement can take a number of forms including as a letter or an email and does not have to be contained within one document.

Alternatively, a partial payment towards the balance owed by a debtor is also sufficient to show that the debtor has confirmed there is a debt outstanding. The partial payment acts as an admission from the debtor that the debt remains alive and payable despite the passage of time.

A confirmation of a debt restarts the six-year countdown, giving the creditor a longer time period to recover the debt.

In the context of running accounts, as explored above, payments by a debtor are generally made ‘on account’ in regard to the entire balance owing as opposed to any particular debt arising from a specific transaction undertaken over the duration of the account’s operation. Therefore, any valid partial payment or acknowledgement by the debtor has the effect of confirming the entire balance and restarting the limitation period for the total debt owing.

Conclusion

Failure to bring a claim within the limitations period can have serious consequences for a debtor. The law in NSW treats that claim as being extinguished and no further action can be brought to recover that debt. Accordingly, it is important for creditors to be mindful of when their cause of action has accrued and to monitor the period for which the debts remain unpaid in the absence of an adequate confirmation restarting time.

Where multiple debts accumulate under one contract, creditors should be aware that each breach gives rise to its own cause of action, meaning that the Limitations Act will treat each breach independently, thus giving rise to multiple limitation period dates under the one contract. This is unless the debtor has ‘confirmed’ the debt, which, in the context of a running account, restarts the limitation period for the entire outstanding debt.

If you have a debt that you are unsure about whether you can enforce or would like assistance in enforcing that debt, our Litigation and Dispute Resolution team can offer specialist advice in this area.

published by

Andrew Lacey

Managing Principal

Recent Insights

View all

Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan

29 August, 2023

Government

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes

18 August, 2023

Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay

10 August, 2023